West Virginia Joins a Number of States Hoping to Further Limit the NCAA

By Alyssa Rodriguez and Gregg E. Clifton

West Virginia joins Georgia, Virginia, Texas, Oklahoma, and Missouri in an effort to protect the state’s student-athletes and potentially prevent the National Collegiate Athletic Association (“NCAA”) from enforcing rules related to Name, Image, and Likeness (“NIL”) and athlete compensation. West Virginia state lawmakers are the latest to join in and advance proposed NIL legislation aimed at protecting their student-athletes and embracing player rights, especially in light of the growing resistance to NCAA regulations amid the looming finalization of the House v. NCAA settlement.

HB2576, also known as the “NIL Protection Act,” was introduced in the West Virginia House of Delegates on February 18, 2025. This legislation would, among other things, attempt to create a legal framework governing how college student-athletes in the state can profit off their NIL. More specifically, it would prohibit the NCAA, conferences, or colleges from investigating or penalizing athletes for NIL-related activities. As the proposed NIL Protection Act states:

“No institution, athletic association, athletic conference, or other organization with authority over intercollegiate athletics may: open an investigation, penalize, suspend, take other adverse action, or declare a student-athlete ineligible from intercollegiate athletic competition.”

This proposed legislation would also permit colleges to compensate athletes for using their NIL and share earned revenue with their athletes. Proponents of the legislation believe it will empower student-athletes to recognize their contributions to college sports.Additionally, the legislation could challenge the NCAA’s legal authority to enforce policies stemming from ongoing anti-trust litigation, including the potential finalization of the House v NCAA settlement in its current form.

The proposed NIL Protection Act comes amid a wave of state-level NIL legislation nationwide as states attempt to respond to the evolving policies on college athletes’ compensation. States are increasingly adopting legislation that prevents the NCAA from enforcing rules related to NIL and athlete compensation in their states. These evolving policies could complicate the implementation of the anticipated finalization of the House settlement. As House is expected to be a transformative moment for college athletics and a historical turning point in the NCAA’s resistance to student-athletes receiving direct compensation, the settlement provisions contain several provisions that could ultimately conflict with state laws if approved by the court.

For example, House would allow colleges to pay 22% of a set formula for average shared revenue with an initial, approximate $20.5 million cap, in addition to an independent review requirement for deals exceeding $600 to prevent pay-for-play arrangements. However, rather than resolving disputes, the settlement provisions set forth may further intensify and open the door to conflicts between state laws and NCAA regulations. Since a federal settlement cannot override state law claims, this could lead to an increase in lawsuits against the NCAA. For example, athletes in these states with specific legislative NIL protections can rely on those state laws to ultimately challenge the settlement provisions, once again prompting more litigation. As such, legislation in states like West Virginia, Georgia, Virginia, Texas, and Mississippi could potentially impact U.S. District Court Judge Claudia Wilken’s April 7, 2025 Fairness Hearing, as she must decide whether to grant final approval of the House settlement. It is anticipated that Judge Wilken may not render her decision on that date and will take under advisement the numerous objections that will be offered from a pre-selected group of individuals who will get to address her in open court. Ultimately, it is believed that Judge Wilken will approve the settlement based upon the standard of review for an antitrust class action case like House, which does not require a judge to find a perfect settlement, Instead, among other considerations, the settlement must only adequately resolve the legal issues raised in the case, not all related problems arising from the action. If Judge Wilken believes the settlement is fair, reasonable and adequate she will approve it.

The growing conflicting state laws provide even greater motivation for the NCAA to lobby Congress for federal legislation that would shield it from ongoing legal disputes over athlete compensation with states’ legislation. Without a national framework, states will continue passing laws that protect their athletes, keep their institutions competitive, and limit the NCAA’s ability to regulate compensation within their state. We can expect that when the House litigation door closes, an overwhelming number of new litigation filings against the NCAA will commence.