NCAA decides to — maybe — do something about name, image, likeness

NIL+legislation+in+the+United+States+is+shown+above.+NCAA+President+Mark+Emmert+has+asked+NCAA+schools+to+implement+NIL+legislation+to+help+further+support+athletic+careers.+

Screenshot of Tableau Public

NIL legislation in the United States is shown above. NCAA President Mark Emmert has asked NCAA schools to implement NIL legislation to help further support athletic careers.

By Claire O'Brien, Sports Video Editor

After two Senate hearings and the possibility of Congress passing name, image and likeness legislation before July 1 dropping to zero, NCAA President Mark Emmert has asked NCAA schools to implement NIL legislation — or he’ll do it for them.

Under name, image and likeness laws, athletes would be able to earn money from endorsement deals or sponsorships, similar to the way professional athletes do. 

Unlike professional athletes, student-athletes would not be paid by the schools they play for. Instead, athletes would be able to get sports-related income, but a third party would be signing their paychecks. 

But the NCAA’s reluctance to let its student-athletes sign endorsements is just another way its bureaucratic ways of doing things often hinders student-athletes instead of helping them.

The NCAA has — for many years — micromanaged student-athletes’ lives and has been dunked on for some of its bureaucratic rules. One of the more famous examples of this was in 2013, when Oklahoma ratted out three football players to the NCAA for eating too much pasta at a team banquet. The NCAA said the players didn’t break any rules, but the players each had to donate $3.83 to a charity of their choice to be reinstated to the team.

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    Employment also has been an issue in which the NCAA bureaucracy has a heavy-handed presence. Currently, student-athletes have to run any employment by their school’s compliance office to make sure they aren’t profiting off being a student-athlete. But the NCAA’s hand might be forced sooner.

    On Monday, the U.S. Supreme Court ruled unanimously in NCAA v. Alston that the NCAA violated antitrust laws. Justice Brett Kavanaugh signaled in a concurring opinion the NCAA’s entire amateurism model violates labor laws because athletes are not paid.

    “The NCAA couches its arguments for not paying student athletes in innocuous labels,” Kavanaugh wrote. “But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America.” 

    At this point, the NCAA’s inaction is catching up to it. California passed name, image and likeness legislation in 2019, and the NCAA could have started to implement changes to name, image and likeness once that legislation was passed. 

    Then, Florida, among other states, passed name, image and likeness legislation that will go into effect July 1, which put a little more pressure on the NCAA to act. Instead of changing its rules to be in compliance with these states’ laws, the NCAA — to no one’s surprise — didn’t do anything. Instead, NCAA president Mark Emmert recently made a visit to Capitol Hill asking Congress to pass name, image and likeness bills for him. In addition to Emmert’s issues, Congress also is working on massive infrastructure and voting rights legislation, among other things. 

    June 16, the Senate Commerce Committee held another hearing about name, image, and likeness, this time with a panel composed entirely of women, including student-athletes. Mississippi Republican Roger Wicker, the Ranking Member of the Committee, chose to skip the hearing.

    Wicker has proposed legislation relating to name, image and likeness in the past. We detailed his proposal — along with other proposals detailed by other senators, including former Stanford football player Cory Booker, New Jersey Democrat and Richard Blumenthal, Connecticut Democrat — last week

    While Congress is addressing the issue at its gridlocked pace, states across the country are passing legislation. The vast majority of states have, at some point, introduced legislation, and several states, including Illinois, have name, image and likeness legislation awaiting the governor’s signature.

    Illinois passed a name, image and likeness bill in May. As of this writing, the bill is awaiting Gov. J.B. Pritzker’s signature. Former Illinois football player Rep. Kambium Buckner (D-Chicago) sponsored the bill.

    Illinois’ legislation is fairly athlete-friendly, and universities cannot penalize students who enter NIL contracts. Student-athletes can only enter into NIL contracts with third parties. In other words, an Illinois student-athlete can’t sign a NIL agreement with the University, but they can sign a NIL agreement with Champaign-Urbana businesses, for example.

    Student-athletes at Illinois universities will be able to be compensated for their name, image and likeness by third parties. For example, an athlete at Illinois would be able to earn money as long as they are not being paid by the University, the Big Ten or the NCAA.

    Illinois universities and entities like the NCAA also are banned from taking away athletes’ scholarships or financial aid for entering into name, image and likeness deals. But schools are free to veto some deals, such as hypothetically banning athletes from signing contracts with Adidas while the school has a contract with Nike.

    Student-athletes also are able to sign with lawyers or agents and are required to inform the school of doing so within seven days. Student-athletes also have to let their university know if they enter into a NIL contract.

    However, Universities can hire third parties to oversee the name, image and likeness program. The University of Illinois announced in February that it was launching a NIL oversight program in conjunction with Opendorse, which has contracted with many other universities as NIL legislation is slowly being implemented across the country.

    Students cannot sign endorsement deals prior to enrolling at their university, and any name, image and likeness deals can’t extend past the date they stop participating in their sport at their university.

    The state of Illinois has proposed bills relating to the NCAA before and has been at the forefront of trying to get the organization to be more fair to the people whose efforts fund it.

    In 2019, Rep. Chris Welch (D-Hillside), who was elected Illinois speaker of the house in 2021, introduced name, image and likeness legislation. The bill was voted on by the House, but the legislative session ended before the Senate voted on it. This year’s bill has similar language to the 2019 bill.

    Rep. Thaddeus Jones (D-Calumet City) also introduced legislation in 2019 that would require public universities to compensate athletes in the three highest revenue producing sports at least $25,000/year. Additionally, the athletes would be classified as employees.

    Universities were required to pay just the athletes in the aforementioned sports but could choose to pay all athletes under Jones’ bill. According to Illinois’ 2020 NCAA report, the three sports that brought in the most revenue were football, men’s basketball and volleyball, so under Jones’ legislation, each athlete in those sports would be classified as an employee and compensated at least $25,000/year.

    Jones’ bill was not voted on by any House committee or the entire House. Jones had proposed similar legislation in 2017, though that also was not voted on.

    Illinois’ NIL legislation is set to take effect July 1 if Pritzker signs the bill before then, but it will take effect immediately if he signs the bill after July 1. We contacted the governor’s office for Pritzker’s thoughts on the bill on his desk, and we haven’t heard back yet. Pritzker did publicly support the 2019 bill.

    Interested in the NIL legislation in all 50 U.S. states? Visit this map to learn more!

    @obrien_clairee

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