The opening weeks of 2021 provided significant updates to our prior article (see July 7, 2020) regarding student athlete name, image and likeness ("NIL") legislation.
On January 11, the NCAA Division I Council indefinitely postponed its own deadline to update the rules and regulation surrounding student athletes' rights to profit off one's NIL. As promulgated in the NIL Resolution adopted by the NCAA Board of Governors, due to "recent judicial, political and governmental enforcement events, including communications from the U.S. Department of Justice's Antitrust Division," the NCAA "supports conducting the appropriate due diligence" before making a further decision regarding student athlete NIL rights. These referenced events occurred in December 2020 and January 2021 as the NCAA was approaching its self-imposed deadline to update its current set of NIL rules.
The homepage on the NCAA's website includes a dedicated category for the NIL issue entitled "Taking Action" which states that the NCAA is "committed to allow name, image and likeness opportunities for student-athletes." However, in the early stages of 2021, the NCAA's actions have spoken more loudly than its words, and this latest delay appears more consistent with its previous views, resulting in continued paralysis for student athletes.
Some members of Congress are not pleased with the NCAA's four corners offense. Senators Cory Booker (D-NJ) and Richard Blumenthal (D-CT) released a statement after the NCAA issued its decision to postpone any NIL rules update. The federal government, led by Booker and Blumenthal, is trying to pass federal measures on this topic. The Senators argued that the delay by the NCAA "reinforces the need for Congress and individual states to move forward with legislative remedies that will provide college athletes with rights that the NCAA continues to neglect." Senators Booker and Blumenthal also voiced their disapproval directly to Donald M. Remy, Chief Operating Officer and Chief Legal Officer of the NCAA, and encouraged the NCAA to act.
Given the focus on the current COVID-19 pandemic, the distribution of vaccines, political upheaval, racial tensions, and the economy, some members of Congress do not believe that any student athlete NIL legislation will be brought to the floor before the summer as the new Congress deals with these national crises. This delay could be advantageous to the NCAA, as it takes the pressure off of NCAA to act quickly. Congressional lawmakers had previously expressed the view that any federal legislation related to NIL should be passed before the beginning of the 2021-2022 academic year. That timing now looks to be unlikely.
With Florida's NIL bill going into effect July 1, 2021, there is the possibility that come midyear, some additional states will have passed NIL legislation, and other states are actively drafting similar legislation. In all, any opportunities for a student athlete to profit off of his or her NIL may largely depend on the location of the university that the student athlete attends, and whether any NIL legislation in such state is in effect or close to being adopted. Consequently, we are left to ponder whether marketable athletes will make a mass migration to Florida public and private schools, to benefit from the NIL bill going into effect. And California is not far behind, as State Senator Nancy Skinner's proposed NIL legislation is set to take to take effect on August 1, 2021. Will the Alabama state legislature act quickly to legislate on NIL in order to continue Nick Saban's domination over college football, so as to not create a competitive disadvantage to the state's pride and joy? As has been the case for quite some time, many questions remain unanswered, and although federal delays may benefit the NCAA right now, it also may create a disjointed state-by-state approach on NIL, and potentially unfavorable backlash for NCAA if public sentiment continues to grow in favor of athletes.
Originally Published by Thompson Coburn, January 2021
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