The “Reggie Bush” Impact on NIL: Part I

Former University of Southern California (USC) football star Reggie Bush filed a lawsuit against the NCAA, seeking the reinstatement of his Heisman Trophy, which was stripped from him in 2010 due to alleged violations of NCAA rules. At the heart of Bush’s legal fight is the issue of Name, Image, and Likeness (NIL) rights and how these rights—if they had been in place at the time of his college career—could have significantly altered the NCAA's disciplinary actions against him. This case offers important insights into the evolving relationship between athletes’ rights to profit from their personal brands and the NCAA’s authority over college sports.

The Background of the Reggie Bush Case

In 2010, Reggie Bush was embroiled in a major NCAA investigation that resulted in the USC football program being penalized and Bush being forced to forfeit his Heisman Trophy. The NCAA alleged that Bush had received impermissible benefits—specifically, gifts and financial support from sports marketers—while playing for USC. This was in violation of NCAA rules, which prohibited college athletes from receiving any form of compensation beyond their scholarships. As part of the penalties, USC also had to vacate wins in which Bush participated, and the athlete himself lost his prestigious Heisman.

Fast-forward to 2021, when Bush, who had long maintained his innocence regarding the nature of the benefits he received, filed a lawsuit against the NCAA. The lawsuit centers around NIL rights, which the NCAA formally adopted in 2021 after years of public pressure, court rulings, and changing public attitudes toward college athletes' ability to profit from their personal brand.

Bush argues that, had NIL rights been in place during his college career, the payments he received from marketing agents would have been permissible, as NIL compensation is now allowed under the NCAA’s new rules. He asserts that the NCAA’s decision to strip him of his Heisman, based on rules that have since been revised, was unjust and should be reversed. He also claims that the NCAA’s actions damaged his reputation and career and seeks compensation for these damages.

Legal Merits of the Case

There are several key legal arguments and considerations that will shape the merits of Bush’s lawsuit. These include constitutional claims, issues of fairness and equity, and the impact of changing legal and regulatory frameworks.

1. NCAA’s Role in Regulating NIL: A Changing Landscape

The primary issue in Bush’s lawsuit revolves around the NCAA’s evolving position on NIL rights. For decades, the NCAA maintained a strict amateurism model that prohibited athletes from profiting off their name, image, and likeness. This rule was often justified as a means to preserve the integrity of college sports, ensuring a distinction between professional and amateur athletes. However, in recent years, as public pressure mounted, both from athletes, legislators, and the general public, the NCAA was forced to reconsider its stance.

In June 2021, the NCAA announced that it would allow athletes to receive compensation for their NIL, although it left the specifics of the new regulations up to individual schools and states. This policy shift represents a fundamental change in the NCAA’s approach to college athletics and calls into question the fairness of penalizing athletes like Bush under rules that have since been significantly altered.

Bush’s legal team argues that the NCAA’s actions in stripping his Heisman Trophy were based on rules that are now outdated and would not have applied had NIL rights been in place at the time. This argument raises an important legal question: Can an organization retroactively punish individuals for violations of rules that were not in place at the time the alleged conduct occurred?

2. Fairness and Equity in the Application of Rules

One of the central principles of Bush’s lawsuit is that the NCAA’s disciplinary actions were inherently unfair, especially in light of the current legal landscape surrounding NIL. When Bush played for USC in the mid-2000s, the NCAA rules explicitly prohibited athletes from receiving compensation, creating a clear line of demarcation between college athletics and professional sports. But with the passage of time and the changing legal framework, this distinction has eroded, and NIL rights have become widely accepted as a legitimate means for college athletes to profit from their personal brand.

From a legal fairness perspective, Bush’s team could argue that the NCAA acted unjustly by imposing severe penalties based on rules that no longer exist. Additionally, the equity argument posits that athletes who were penalized under these outdated rules, especially those like Bush who achieved significant fame, should be treated differently than current athletes benefiting from NIL.

This raises the broader legal question of whether the NCAA has the authority to retroactively enforce rules that no longer align with the current reality of college sports. In the case of Bush, who had no ability to profit from his NIL while still in college, there is a strong argument that the sanctions placed on him were disproportionate, particularly given that athletes now enjoy the ability to secure NIL deals freely.

3. Constitutional Claims: Right to Earn a Livelihood

Another aspect of the lawsuit that could play a role in its legal merits involves the potential constitutional claims that may be raised in the future. Specifically, Bush’s legal team may argue that the NCAA’s actions—by stripping him of his Heisman and penalizing him for receiving impermissible benefits—violated his constitutional rights, particularly his right to earn a livelihood.

While the NCAA and its member schools are private institutions, they operate in a public domain, especially when dealing with entities like the U.S. government and professional sports leagues. In the broader context of antitrust law and the rights of athletes, the NCAA’s power to restrict athletes’ ability to profit from their NIL has been heavily scrutinized. In fact, courts have previously ruled against the NCAA on the basis that its restrictions on athlete compensation were anticompetitive.

Thus, a potential constitutional claim could argue that the NCAA’s actions in punishing Bush for violations that would not be punishable under today’s rules constitute an unconstitutional infringement on his rights to freely earn a living, particularly in light of the evolving legal framework around NIL.

4. Impact on Reggie Bush’s Reputation and Career

In his lawsuit, Bush also seeks to address the long-lasting impact the NCAA’s decision has had on his career and public image. While NIL compensation could not retroactively reinstate Bush’s Heisman or undo the penalties against USC, it may be possible for him to receive some form of compensatory damages related to the reputational harm caused by the NCAA’s actions.

While it may be difficult to quantify the exact impact of losing his Heisman, Bush’s legal team could argue that his reputation suffered, both during and after his college career, due to the sanctions imposed by the NCAA. The ability to regain his Heisman and have his name cleared could significantly restore his professional standing and public image, particularly within the context of the now-accepted NIL market for college athletes.

Conclusion: A Case with Legal and Precedential Implications

Reggie Bush’s lawsuit has the potential to significantly reshape the landscape of college athletics and athlete rights. As the first major case addressing the intersection of past NCAA rules and the new NIL era, the outcome could set important legal precedents, not only for the NCAA but also for how courts view the evolving relationship between amateur athletes and the institutions they represent.

Ultimately, the case is about more than just one athlete’s fight to regain a Heisman Trophy. It touches on issues of fairness, legal consistency, and the future of college sports in a world where athletes can now profit from their name, image, and likeness. While the legal hurdles are significant, the growing momentum around NIL rights could be a game-changer for athletes like Reggie Bush, who are seeking justice for past wrongs in the face of an evolving legal and regulatory landscape.