On Friday, the NCAA released further details of the name, image, and likeness (NIL) rule changes that the organization intends to implement. While the changes are allowing college athletes to profit from their NIL, the rules still seem a bit more restrictive than necessary. Furthermore, there is a chance that the NCAA's rules could conflict with NIL laws that have been enacted in several states already. Last year, California enacted the "Fair Pay to Play Act." Under California's "Fair Pay to Play Act," college athletes attending a four-year university in California will be allowed to profit from the commercial use of their NIL and sign with agents.
California ignited a firestorm when they enacted their "Fair Pay to Play Act," as soon after, other states followed suit by proposing similar bills to their state legislatures. Since then four more states have enacted similar laws. Specifically, Colorado, New Jersey, Nebraska, and Florida have enacted college athlete name, image, and likeness laws. Florida's is set to take effect the earliest on July 1, 2021. Due to state level legislation and pressure from Congress, which is considering several related bills, the NCAA was forced to amend their rules sooner rather than later. As such, the NCAA has revealed their proposed changes that will go into effect on August 1, 2021, if they receive a favorable vote at the NCAA's conference in January.
What Changes is the NCAA Planning to Make?
In October, the NCAA revealed that under their new rules college athletes would be allowed to profit from the commercial use of their name, image, and likeness. As previously reported under the NCAA's new rules, college athletes will be allowed to promote and run their own camps and clinics as long as they do not use any school insignia in their promotion. College athletes will be allowed to endorse products and refer to the fact that they are collegiate athletes. However, they will not be allowed to make any reference to their respective schools.
Additionally, college athletes will be allowed to receive compensation for autograph sessions as long as the sessions do not take place during official team events. College athletes would also be allowed to sell their memorabilia once their eligibility ends. Moreover, college athletes will be able to solicit the assistance of "professional service providers" to seek and negotiate deals. The NCAA's new rules will also require that college athletes disclose any NIL compensation deals to a third party administrator that has yet to be named. Furthermore, it appears that the NCAA intends for the changes to apply to prospective college athletes as the document released on Friday mentions ensuring that the new model provides consistency and clarity for prospective college athletes.
The New Rules Seem to Expand and Limit College Athletes' Rights at the Same Time
The NCAA is amending its rules to expand college athletes' ability to profit from the commercial use of their NIL. However, the rules also contain provisions that arguably unduly restrict college athletes' ability to fully take advantage of their newly given NIL compensation freedom. For example, the NCAA's new rules prohibits a college athlete's NIL from being used by an athletics equipment company or manufacturer to publicize the fact that the athletes' school uses the company's equipment. Similarly, the NCAA's proposed rules prohibit college athletes from entering deals with companies that have deals with their respective schools. Through these two provisions, the NCAA is severely limiting college athletes' ability to enter NIL deals with athletic apparel companies, which could be a significant source of college athlete NIL opportunities.
Furthermore, these two limitations are in direct conflict with several of the enacted state NIL laws. For example, California's "Fair Pay to Play Act" allows college athletes to enter endorsement deals with companies that have contracts with their respective schools. Colorado's, Nebraska's, and New Jersey's, name, image and likeness laws all prohibit college athletes from entering into deals that conflict with their respective school's deal. However, those laws also mandate that a school's contract cannot prohibit college athletes' from engaging in the commercial use of their NIL when the athlete is not participating in official team activities. The NCAA's proposed rules do not make this distinction.
The NCAA Still has Time to Make More Changes
As mentioned, the NCAA is will not officially vote on these proposed changes until their conference in January. As such, conferences can offer amendments to the proposed rules until December 15, 2020. Accordingly, college sports fans, current and prospective college athletes, and college rights advocates will not know for sure what the NCAA's NIL rule changes will officially be until January 2021.
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