In our first look at the wide-ranging landscape of Name Image and Likeness, which will allow NCAA student-athletes to profit from their personal brands, we outlined the basics of the many changes on the way for college athletics, and also touched on a number of topics deserving of further exploration. Today we look at one of those — the many different laws that are set to take effect over the next couple of years, and how the current lack of a single unifying set of rules and directions could cause chaos as soon as July 1 of this year.
As many states pass their own versions of Name, Image and Likeness legislation, an inherent conflict has been set up: no two versions of those laws are identical. And while some are similar, some have very different rules covering how student-athletes can earn money.
The similarities throughout the laws cover the basics, such as prohibiting schools from assisting in the NIL process, but also barring them from preventing their SAs from monetizing their NIL. Other provisions are wide-spread, but not universal.
For example, a number of the state laws will allow SAs to have agents for the purpose of marketing them to prospective clients. Those agents will not, theoretically, be allowed to represent them in any other way during their collegiate careers, including as a conduit to professional sports teams, but it’s hard to imagine that being policed effectively. Many of the laws also specify that compensation for NIL be “of fair market value” without processes of determining just what that might be. That is meant to prevent a well-heeled booster from paying an exorbitant amount to a SA for a small amount of work — but again, determining what is fair value in the world of social media is anyone’s guess at this point.
Many, but not all, of the laws will require disclosure by the SAs to their schools at the time of, or just prior to, any NIL agreement being made. A number will prohibit competing endorsements — for example, if Coke is a primary sponsor of an institution’s athletic department, a student-athlete might not be allowed to set up an NIL deal with Pepsi. Agreements with entities that sell or market products “inconsistent with institutional values” such as gambling or alcohol, are also prohibited in many of the laws (even though a number of schools sell alcohol at their athletic events).
Another interesting provision in a handful of the laws is one that prohibits the conduct of NIL business during official team functions and mandatory activities. This would presumably prevent the making of videos or social media posts during, say, a practice or a game. Also, as noted earlier, schools will not be able to assist in the making of NIL content in any way, including producing videos or supplying photos. SAs also will not be able to use game or practice footage in their NIL content.
There are also some provisions that only show up in a small number of the legislation passed by states. New Jersey, for example, bans endorsement of firearms and ammunition – something that would really hurt members of a rifle team. New Mexico will allow SAs to wear their footwear of choice, even if it is of a competing brand to the any of its school’s official athletics gear.
While the states have been busy in creating NIL legislation, the U.S. Congress and the NCAA have not. Some of that can certainly be blamed on the typical snail’s pace of legislation through both of those bodies, but there are also some other agendas in play.
The NCAA, after failing utterly to effectively revamp its recruiting rules, has continually postponed voting on and passing its own set of rules governing NIL, likely because whatever it produces will be weak, miss key points, and be a massive headache to enforce. Instead, it wants the U.S. Congress to create its own law that would supersede all of the state laws. That would give the NCAA something to point its finger at and way ‘We didn’t do this, but we have to follow it, so that is what our policy will be.’
Of course, the NCAA won’t admit that. And it’s Division I Council does have a vote scheduled on its own NIL legislation during its meetings on June 22-23, but it does not that it will only conduct that vote “provided it is feasible to do so.”
That provision, and the NCAA’s history, suggests that the NCAA’s legislation will be quite narrow, and only provide general guidelines, or “guardrails” to the NIL process. It might ban a few items, such as drugs, alcohol, gambling and adult entertainment, but it won’t try to reconcile all of the differences that abound in the many state laws already passed or pending. What will happen the first time a state law is more (or less) restrictive than the NCAA version? That’s one of many problems the NCAA doesn’t want to address, which is why it is lobbying Congress to pass a national law that would give it one set of rules to work with.
So, that gives those tracking the NIL process two near-term dates to watch – June 22-23, to see if the NCAA passes its own rules, and July 1, when laws for several states go into effect. Of less determinate status, Congress is also on the watch list, but there is no timetable yet for the passage of any bill or proposed legislation.