By Robert J. Romano, JD, LLM, sports law professor at St. John’s University
College Athletics will soon undergo a significant change as the NCAA, various state legislators, and several members of Congress, have or are proposing new rules or laws which would permit college student-athletes the right to monetize their Name, Image and Likeness (NIL) without the fear of losing either a scholarship or eligibility. The question becomes, which rule, state law, or federal legislation must athletic directors at the over 1,100 athletic departments throughout the United States need to adhere to in order to properly counsel and advise their student-athletes, while also staying in compliance with NCAA rules and regulations?
The first thing athletic directors need to understand is that, as of now, there is no NCAA rule allowing student-athletes to monetize their NIL. Although it appears as if the NCAA is moving forward, nothing is, as they say, ‘on the books’ as of yet. However, the NCAA’s Division I Council is ‘expected’ to act on the proposed rule changes at its next meeting scheduled for June 22 and 23, 2021. But before anyone begins analyzing the proposed NCAA rule change, be aware that the NCAA has already been down this road. The current proposal is the same one drafted by the NCAA in 2020, but was tabled during the January meeting because of some ‘legal concerns’. And, for all intents and purposes, these same ‘legal concerns’ are again in play since the U.S. Supreme Court, to date, has not issued a ruling at the NCAA vs. Alston case, a case which will provide insight as to whether or not the NCAA’s restrictions on compensation for student-athletes violates federal antitrust law.
Heather Lyke, Director of Athletics at the University of Pittsburgh and a member of the NCAA’s Division I Council, expects that even though the NCAA will be taking up this issue again at its June meeting, the specifics on how schools will handle the myriad of small details and issues presented by allowing NIL deals has yet to be ‘fully fleshed out’.
In addition, Ohio State Athletic Director Gene Smith, who co-chaired the NCAA’s working group on NIL, stated that legislation is in the works that would be less restrictive than the proposed rule changes that the NCAA is considering, which could give student-athletes more opportunities. Smith has indicated that he remains hopeful that the NCAA will get nationwide rules into place, but admitted that there will be “some level of chaos” before a national rule is in place.
To further the chaos for athletic directors and athletic departments alike, eighteen states have officially passed specific NIL laws, all with different start dates and standards as to what is allowable when it comes to allowing athletes to monetize their NIL. The six states where the law takes effect in 2021 are as follows:
- Florida – July 1, 2021
- Alabama – July 1, 2021
- Georgia – July 1, 2021
- Mississippi – July 1, 2021
- New Mexico – July 1, 2021, and
- Arizona – July 23, 2021
(Interesting that four of those states are in the SEC)
In addition, twelve states have passed legislation that will go into effect within the next four years:
- Arkansas (2022)
- California (2023)
- Colorado (2023)
- Maryland (2023)
- Michigan (2022)
- Montana (2023)
- Nebraska (No later than 2023 — can be implemented immediately on a by-school basis)
- Nevada (2022)
- New Jersey (2025)
- Oklahoma (No later than 2023 — can be implemented immediately on a by-school basis)
- South Carolina (2023)
- Tennessee (2022).
All the while, in the background, athletic directors and their departments wait on Congress to pass a federal version of a NIL bill that will bring some form of uniformity to the issue, while at the same time superseding the assorted laws initiated at the state level. This would ultimately be a solution to the ‘chaos’, but no one is sure as to if and when such a bill will become law.
It is reported that Sen. Maria Cantwell (D-WA), chair of the Senate Committee on Commerce, Science and Transportation, is working on coalescing a bill that would ‘bundle’ current proposed legislation which includes language from Sen. Cory Booker’s (D-NJ) “College Athletes Bill of Rights” bill, Senator Chris Murphy’s (D-CT) “College Athlete Economic Freedom Act” bill; as well as Senator Anthony Gonzalez’s (R-OH) “Student Athlete Level Playing Field Act” proposed legislation. Senator Cantwell is described as the “ringleader” in trying to unite legislators on “both sides of the aisle.”
One thing is certain, there needs to be only one NIL rule which all member institution needs to follow. Therefore, NCAA needs Congress to implement one acceptable version of a NIL law so that athletic departments can have the necessary information needed to make decisions about recruiting student-athletes, allocate resources for NIL education, how and under what circumstances student-athletes can use social media to generate income, together with how, if any, effect the legislation will have on need-based aid and Federal Pell Grant awards, to name a few. But such topics will be addressed in Part II in this series of articles.
 NCAA v. Alston, No. 19-15566 (9th Cir. 2020).