New Issues in Legislation: Name, Image, & Likeness Framework for College Athletes

About the Author: Cole Newton is a first-year law student at American University Washington College of Law. Cole is a graduate of Centre College and hopes to work in domestic policy or international trade law.

Sports are a large part of many American lives. Collegiate athletics allow athletes, institutions, local and national businesses, and fans a variety of opportunities for entertainment, competition, and transformative experiences. Looking exclusively at the National Collegiate Athletic Association (NCAA) and its three divisions, over half a million student athletes compete each year in a variety of different team and individual sports.[1] Debates have long raged over the issue of collegiate athlete compensation, with strong arguments from every side. One major change has recently come to college athletics, and that is the development of name, image, and likeness (NIL) deals.

NIL deals allow collegiate student-athletes to be compensated for their name, image, and likeness. Signing autographs, gaining endorsements, and releasing merchandise are some of the most prevalent ways NIL is helping student-athletes build their brand off the field or court. Additionally, many NIL provisions allow college athletes to retain their amateur status after signing with an agent to manage business dealings. College athletics, as an industry, is a big-money business. NCAA Athletic Departments reported revenues of $18.9 Billion.[2] This figure is driven, in large part, by Division-I football teams with their huge crowds and lucrative media deals. Many of the most remarkable deals have been signed by football players from powerhouse programs, although athletes in all sports stand to benefit. According to Coach Nick Saban of the University of Alabama, the Tide’s quarterback is approaching seven figures in NIL deals.[3] Some believe that NIL deals could add the most value for female student-athletes who traditionally have fewer opportunities to capitalize on their sports prowess.[4]

Where does legislation come into this discussion of college sports? Although the debate on collegiate student-athlete compensation is ongoing, the NIL and endorsement component reached a turning point in 2019, when the California State Legislature adopted the Fair Pay to Play Act, which was signed into law in 2021.[5] After California acted, the floodgates opened in states and at the federal level. As of September 2021, twenty-eight states have enacted provisions allowing NIL compensation for athletes.[6] Several pieces of federal legislation have been introduced in both chambers of Congress, but all thus far have stopped at the committee level.[7] A recent Supreme Court decision also indicates a shift in the attitude and regulation of student-athlete compensation.[8]

Due to the response from state legislatures, the NCAA adopted a temporary waiver to allow students across the country to pursue NIL deals.[9] So as fall sports roll along this year, all NCAA student-athletes can benefit from their name, image, and likeness, but this policy serves as a placeholder until federal legislation or NCAA rule changes are made. One of the major issues with the state-led approach to NIL as it stands today is the nuance and “murkiness” of untangling the specifics.[10] Another complicating factor is a recent National Labor Relations Board memo which indicated that private college athletes “qualify as employees under federal labor law,” which opens an entirely new set of issues and potential regulation.[11] The summer also saw some of the first hearings on Capitol Hill on the issue, with the House Subcommittee on Consumer Protection and Commerce emerging as the main forum where NIL issues will be addressed at the federal level.[12]

As NCAA president Mark Emmert remarked in his opening statement to the Subcommittee, there is an urgent need to create a federal framework around NIL.[13] The current state-by-state approach presents many challenges and could lead to an uneven playing field, greatly impacting recruiting efforts and the culture of college athletics.[14] A federal framework would protect athletes, institutions, businesses, and fans. The framework would have the ability to promote educational opportunities, equity across demographics, and help to efficiently reallocate resources in a major industry. It would also help clarify the application of the legal issues surrounding sports compensation and employment. Although NIL consideration has somewhat stalled because of pressing congressional issues, straightening out college NIL deals could be a decision that positively impacts collegiate student-athletes for a long time.

[1] Overview, NCAA, https://www.ncaa.org/overview (last visited Oct. 8, 2021).

[2] Finances of Intercollegiate Athletics, NCAA, https://www.ncaa.org/about/resources/research/finances-intercollegiate-athletics?division=d2 (last visited Oct. 8, 2021).

[3] The Athletic Staff, Nick Saban: Alabama’s Bryce Young Earning Near ‘Seven Figures’ in NIL Deals, The Athletic, (July 20, 2021), https://theathletic.com/news/nick-saban-alabamas-bryce-young-earning-near-seven-figures-in-nil-deals/bxUbIpB0uPdX.

[4] Abigail Hess, Here’s How College Athletes Can Now Make Money, According to the NCAA’s New Policy, CNBC, (July 1, 2021), https://www.cnbc.com/2021/07/01/how-college-athletes-can-make-money-according-to-new-ncaa-nil-policy.html.

[5] Maria Carrasco, Student Athlete Pay Law Takes Effect in Calif, Inside Higher Ed (Sept. 2, 2021), https://www.insidehighered.com/quicktakes/2021/09/02/student-athlete-pay-law-takes-effect-calif.

[6] Dan Murphy, Everything You Need to Know About the NCAA’s NIL Debate, ESPN (Sept. 1, 2021), https://www.espn.com/college-sports/story/_/id/31086019/everything-need-know-ncaa-nil-debate.

[7] See generally S. 5062, 116th Cong. (2020); S. 414, 117th Cong. (2021); H. 2841, 117th Cong. (2021).

[8] NCAA v. Alston, 141 S. Ct. 2141 (2021).

[9] Michelle Hosick, NCAA Adopts Interim Name, Image and Likeness Policy, NCAA (June 30, 2021), https://www.ncaa.org/about/resources/media-center/news/ncaa-adopts-interim-name-image-and-likeness-policy.

[10] Billy Witz, The Dynamics of College Sports are Changing. So are the Business Prospects. New York Times (June 28, 2021), https://www.nytimes.com/2021/06/25/sports/ncaabasketball/ncaa-nil-athletes-endorsements.html.

[11] Maria Carrasco, Treating Private College Athletes Like the Pros, Inside Higher Ed (Sept. 30, 2021), https://www.insidehighered.com/news/2021/09/30/nlrb-decision-paves-way-college-athlete-rights.

[12] Maria Carrasco, Congress Weighs In on College Athletes Leveraging Their Brand, Inside Higher ED (Oct. 1, 2021), https://www.insidehighered.com/news/2021/10/01/congress-holds-hearing-creating-federal-nil-law.

[13] Id.

[14] Id.