{"id":143,"date":"2022-08-01T16:17:50","date_gmt":"2022-08-01T20:17:50","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/sportslaw\/?p=143"},"modified":"2022-08-01T16:17:50","modified_gmt":"2022-08-01T20:17:50","slug":"one-year-on-nil-laws-and-policies-leave-more-questions-than-answers","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/sportslaw\/2022\/08\/01\/one-year-on-nil-laws-and-policies-leave-more-questions-than-answers\/","title":{"rendered":"One Year On, NIL Laws and Policies Leave More Questions than Answers"},"content":{"rendered":"

On June 17, 2022, The Ohio State University announced<\/a> it had surpassed 1,000 name, image, and likeness (\u201cNIL\u201d) deals during the first year of the policy\u2019s existence.\u00a0 It was almost exactly one year prior\u2014June 30, 2021\u2014that the NCAA first suspended<\/a> its NIL rules for student-athletes.\u00a0 That means that, on average, 2.7 NIL deals are signed every day<\/em> with Ohio State athletes.\u00a0\u00a0\u00a0 Other powerhouse athletic programs\u2014Georgia, Texas, Clemson, Southern California, Alabama, and all the others\u2014cannot be far behind.<\/p>\n

If you are not familiar with NIL, you are neither alone nor behind the times.\u00a0 It is a rapidly changing area where sports, education, law, politics, and fanaticism for one\u2019s chosen college team intersect.\u00a0 At its most basic, \u201cNIL\u201d refers to a college student-athlete\u2019s agreement to allow a third party\u2014be that a car dealership, app developer, or energy drink producer\u2014to use his or her name, image, or likeness to promote its brand.<\/p>\n

Until last June, the NCAA did not permit any student-athletes to receive any<\/em> compensation for the use of their names, images, or likenesses.\u00a0 That meant that, despite appearing on live, televised games, archived game footage, sports video games, and other media, student-athletes could not be compensated as their likenesses were used, and even though they did not give consent to their use.\u00a0 The change started several years before, when former UCLA basketball player Ed O\u2019Bannon famously sued the NCAA and, around the same time, former Nebraska and former Arizona State and Nebraska quarterback Sam Keller sued both the NCAA and Electronic Arts, Inc. (a video game company), alleging that the defendants violated the Sherman Antitrust Act and other state publicity statutes and common law doctrines.<\/p>\n

When it was decided in 2015, O\u2019Bannon<\/em> did not result in a holding that students are entitled to payment for use of their NIL.\u00a0 In fact, the Ninth Circuit Court of Appeals held<\/a> that the NCAA\u2019s rules prohibiting compensation were valid insofar as student-athletes were not entitled to up to $5,000 in deferred compensation for their NIL rights, to be paid after graduation.\u00a0 But the O\u2019Bannon<\/em> case was merely the first domino to fall, and when it did, it launched NIL rights into the wider college sports discourse.<\/p>\n

State governments began to address the NIL debate.\u00a0 In 2019, California was the first state to pass legislation on this issue. \u00a0California\u2019s Fair Pay to Play Act<\/a> provides that no postsecondary school, athletic conference, or organization with authority over collegiate athletics (i.e., the NCAA) may prevent a student-athlete from earning compensation for \u201cthe use of the student\u2019s name, image, likeness, or athletic reputation.\u201d\u00a0 At least 25 other states have since passed laws on the same issue, while at least three governors have issued executive orders on NIL rights (one of which became statutory law).<\/p>\n

In 2021, the U.S. Supreme Court decided NCAA v. Alston<\/em><\/a>, in which current and former NCAA Division I football and basketball players again challenged the NCAA\u2019s policies forbidding compensation under the Sherman Act.\u00a0 Though the Supreme Court ruled in favor of the plaintiffs, Alston<\/em>, like O\u2019Bannon<\/em>, did not itself hold that student-athletes must be allowed to received compensation for their NIL.\u00a0 Yet, after suffering two losses in federal court and watching state legislatures take action to promote student-athletes\u2019 NIL rights, the NCAA voluntarily adopted a policy that suspended the prohibition against student-athletes earning compensation for their publicity rights.<\/p>\n

The NCAA\u2019s relaxation of its NIL policy was intended to allow student-athletes to earn money, aside from their scholarships, for their appearance in ads, at events, and the like.\u00a0 From the outset, the NCAA insisted<\/a> it would nevertheless \u201cpreserve[ ] the commitment to avoid pay-for-play and improper inducements tied to choosing to attend a particular school.\u201d<\/p>\n

But in the intervening year since Alston <\/em>was decided, the NCAA\u2019s decision has resulted in a frenzy of activity over the past year that has blurred the lines between permissible NIL activity, pay-for-play, and recruitment.\u00a0 Millions of dollars\u2019 worth of deals have been negotiated with student-athletes (at the University of Texas alone, more than 150<\/a> student-athletes have signed NIL deals that, in total, surpassed $2 million<\/a>).\u00a0 Almost half of that amount is going to the school\u2019s football players.\u00a0 Donor \u201ccollectives\u201d have sprung up to fund NIL deals for students in the six- and seven-figures<\/a>.\u00a0 Universities have enacted NIL policies<\/a> in attempts to comply with both their NCAA obligations and state law.\u00a0 States, meanwhile, have reportedly<\/a> changed their laws to permit these \u201ccollectives\u201d to openly cooperate with universities and athletic departments in what may be an arms race for empowering their colleges to attract the most sought-after recruits. The potential legal issues are limitless.<\/p>\n

Duane Morris always has its ear to the ground for developments in sports law, this blog intends to follow the major legal developments in the NIL space while providing practical updates to colleges, students, and businesses who have an interest in this ever-changing body of law. As athletes return to campus, and as NIL begins its second year in full effect, the news is certain to keep coming, and you can track key changes right here.<\/p>\n","protected":false},"excerpt":{"rendered":"

On June 17, 2022, The Ohio State University announced it had surpassed 1,000 name, image, and likeness (\u201cNIL\u201d) deals during the first year of the policy\u2019s existence.\u00a0 It was almost exactly one year prior\u2014June 30, 2021\u2014that the NCAA first suspended its NIL rules for student-athletes.\u00a0 That means that, on average, 2.7 NIL deals are signed … <\/p>\n

Continue reading “One Year On, NIL Laws and Policies Leave More Questions than Answers”<\/span><\/a><\/p>\n","protected":false},"author":572,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"ppma_author":[339],"class_list":["post-143","post","type-post","status-publish","format-standard","hentry","category-general"],"authors":[{"term_id":339,"user_id":572,"is_guest":0,"slug":"dtdorner","display_name":"Drew T. Dorner","avatar_url":"https:\/\/blogs.duanemorris.com\/sportslaw\/wp-content\/uploads\/sites\/24\/2022\/07\/dornerdrew-100x100.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/sportslaw\/wp-json\/wp\/v2\/posts\/143","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/sportslaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/sportslaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/sportslaw\/wp-json\/wp\/v2\/users\/572"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/sportslaw\/wp-json\/wp\/v2\/comments?post=143"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/sportslaw\/wp-json\/wp\/v2\/posts\/143\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/sportslaw\/wp-json\/wp\/v2\/media?parent=143"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/sportslaw\/wp-json\/wp\/v2\/categories?post=143"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/sportslaw\/wp-json\/wp\/v2\/tags?post=143"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/sportslaw\/wp-json\/wp\/v2\/ppma_author?post=143"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}