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NCAA Punts on Name, Image, Likeness Rules (For Now)

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Oral Roberts v Florida Photo by Maddie Meyer/Getty Images

In my day job that I don’t really reference on here at all, I am a Legislative Analyst in government. So, naturally, I am the person who makes the most sense on the writing staff here at our esteemed website, The Only Colors, to explain the complex web of what is going on right now with Name, Image, Likeness (NIL) laws and rules. So step right up and I’ll tell you a tale.

[Legal Disclaimer: I am an analyst, not a lawyer, and this is not my policy area of specialty. None of what I explain below should be used as formal legal advice or official guidance on what has/is/will happen with NIL moving forward.]

What is NIL?

First and foremost it would be best to define the thing we are going to talk about. Most, if not all, of you already know the general concept of what NIL is, but let’s break it down a little bit further. Put most simply, it is the three elements that make up the legal concept known as “rights of publicity.” This allows a person to sell the use of his/her/their own name, image, and likeness for the purpose of marketing by a business.

This is not to be confused with copyright, for example. A photographer at a football game has every right to take a photo of a player and sell it to a newspaper (or this most excellent website) for publishing with a news story without any compensation being owed to that player. That applies to the professional leagues as well, by the way.

However, what it does allow a player to do is to go out and sign a contract with a local car dealership, for example, and let that dealer attach catchy slogans to pictures of the player claiming what a great business this dealership is if you want to buy or lease a new or used vehicle. The car dealership then draws new customers who want a vehicle from a business endorsed by their beloved college player of the team they support and the car dealer pours thankful money into the athlete’s bank account for advertising services rendered. Everyone is happy except for the people who chose to buy a new or used vehicle right now during ongoing price spikes in the market, but I digress.

NCAA NIL Rules

First and foremost, let us start at the top of the college food chain with the NCAA. President Mark Emmert officially came out pushing for fast tracking NIL rules earlier this month after a number of states passed legislation enabling NIL for college athletes in their respective states beginning July 1 of this year.

The NCAA Division I Name, Image, and Likeness Legislative Solutions Group also provided recommendations to the NCAA Council back in January of this year. However, the Council did not call explicitly for passing a NCAA rule in the near future. The NCAA Council itself is made up of 40 members, but weighted heavily toward the Power Five conference members in votes.

The Council had its spring meeting yesterday, and did discuss NIL recommendations pending before it. However, it seems the Council is wanting to wait until, at the earliest the June 22-23 meeting, in hopes a Supreme Court ruling loosely connected to NIL issues is decided by then. The Council reportedly expressed general support for both NIL legislation to pass as well as amending the proposals being considered to take effect on July 1 or immediately upon enactment by the Council if after that date. This is to ensure a more uniform approach across the country as a number of state’s laws become effective July 1.

However, in terms of what happened in the spring meeting yesterday, the decision was to yet again to punt on the issue like a Kirk Ferentz offensive game plan.

Michigan’s NIL Rules

Michigan State Capitol Getty Images

Michigan passed its own NIL legislation in December 2020. The law will take effect Dec. 31, 2022 and allow student-athletes to enter into endorsement deals, hire agents, and accept gifts. Their schools will not be able to punish them for doing so. However, they cannot sign onto any apparel contract that conflicts with their school’s respective apparel contracts.

Big Ten Footprint’s NIL Rules

  • New Jersey: The state enacted a NIL bill that went into “immediate effect” in September 2020, but will not actually be applicable until the “fifth academic year” after its enactment (2025). It will allow student-athletes to earn compensation from the use of their NIL, and also obtain professional representation, including from attorneys and agents, without impacting their scholarship eligibility at their respective schools.
  • Maryland: In May 2021, Maryland enacted the Jordan McNair Safe and Fair Play Act that allows NIL rights to student-athletes. It has some restrictions such as prohibiting student-athletes from “engaging in in-person advertising for a third-party sponsor during official and mandatory team activities.” It also has similar provisions regarding conflicting apparel contracts and prohibits using any school logo, trademark, etc. by the student-athlete. They must also disclose any contracts to the school. The bill included non-NIL issues around health and safety and was named in honor of the late Jordan McNair who suffered heatstroke during a practice in 2018 and later passed away as a result.
  • Pennsylvania: Has a bill in the legislature, but it has not been passed by both chambers and signed by the Governor at time of publication
  • Iowa: Has a bill in the legislature but it has not been passed by both chambers and signed by the Governor at time of publication
  • Nebraska: The state passed a NIL bill July 2020 that will go into effect no later than July 1, 2023, but schools have the option to implement the new policy before that date.
  • Ohio, Indiana, Illinois, Wisconsin, Minnesota: No pending legislation or law in place

National and Federal NIL Rules

Sunset at the US Capitol on Friday, Nov. 6, 2020.
Kevin Knight

Thus far, 16 states have a NIL bill passed and taking effect between now and 2025, with another 11 states having a bill actively being considered in their legislatures. However, instead of the patchwork landscape being done now, all entities seem in lockstep agreement that it would be easier with either a national rule in place to keep a level playing field in college athletics (such a noble, if naive idea, isn’t it?).

With that in mind, there have already been a number of bills introduced in the 117th Congress. Given none of them are going anywhere, I am not going to waste everyone’s time breaking each one down in its content. However, there is a growing momentum behind a bipartisan effort at bridging some of the gaps between the two parties in Congress on this issue.

I don’t work on the Hill anymore (thank freaking God) so I have zero insider information to leak on this here. Reports do suggest there is still a ways to go before a full deal is reached on a truly bipartisan bill with wide support behind it is actually dropped into the clerk’s hopper in both chambers. Then comes it working its way through the committee process and passing both chambers before heading off for signature. Before this becomes too much of a School House Rock lecture, let me wrap this up.

I’m still a lowly government employee and not some high paid lobbyist companies pay lots of money for this very type of opinion on, but to be frank, you should not bet any money on a NIL bill coming out of Congress this calendar year in my opinion. The current President of the united States has a very, very ambitious agenda he wants to push through this year before Congress has to focus on the midterms next year, and a NIL bill is the type of thing that can more likely sail through next calendar year (and the final year of the 117th Congress) when everyone is focused on midterm elections. This isn’t a political good or bad decision, and please don’t take it as an opportunity to talk about President Biden’s agenda or Republican efforts in Congress in response, but merely as a non-partisan observation on the reality of where a NIL bill stands at the national level.

With all of that said, we will be sure to cover the NIL legislation that the NCAA does eventually enact most likely in June. In the meantime, thank you for coming to this status check-in and please consider me for a NIL contract because I am not a college-athlete and therefore do not have to wait for further action by anybody to get paid for the use of my witty cynicism.