New York, N.Y. (October 17, 2023) - Phoenix Partner and Chair of Lewis Brisbois' Collegiate & Professional Sports Law Practice Gregg E. Clifton and New York Associate Christina Stylianou recently published an article titled, "NCAA's Regulations Attempt to Restrict State Law: The New NIL Battleground," in the September 2023 issue of The Licensing Journal. The article discusses the National Collegiate Athletic Association's (NCAA) intention to enforce its name, image, and likeness (NIL) rules in the face of more permissive state NIL legislation.
The authors open the article by explaining that while the NCAA has announced its plan to "crackdown on alleged NIL violations by its member schools," several states have passed, or are considering, NIL legislation that is more permissive than the NCAA's rules. They write, "These [state] laws not only legalize certain NIL activities that are currently prohibited by NCAA rules but also, in certain states, actively prohibit NCAA action."
Next, Mr. Clifton and Ms. Stylianou describe the memo that the NCAA has released to its member schools, which states that where state legislation conflicts with NCAA rules, "institutions must follow NCAA legislation." The authors review various portions of the memo, explaining that it clamps down on collective activity and addresses California legislation that permits revenue-sharing between institutions and their student-athletes.
Finally, the authors query whether the NCAA will be able to enforce its position, noting that "despite the NCAA's stance, it is not legal for the NCAA to use its regulations to preempt state law under the American legal system." Observing that, "it is unclear at this time how the NCAA intends to enforce its legal position," Mr. Clifton and Ms. Stylianou go on to describe avenues that the NCAA may pursue, including attempting to invalidate state laws. They also explain the potential consequences associated with each course of action, while ultimately pointing out that "how vigorously the NCAA intends to uphold the content of the memo remains to be seen."
Mr. Clifton is chair of Lewis Brisbois' Collegiate & Professional Sports Law Practice, and a member of the firm's Entertainment, Media & Sports and Labor & Employment Practices. He has extensive experience in the collegiate and professional sports world and has advised numerous professional franchises on a range of labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. Mr. Clifton is also an editor of The Official Review, Lewis Brisbois' sports law blog.
Ms. Stylianou is a member of Lewis Brisbois' General Liability and Entertainment, Media, & Sports Practices. She regularly represents clients in a variety of professional and collegiate sports and entertainment matters, including contract-related matters, intellectual property matters, workers' compensation and injury, Title IX issues, among others. In addition, Ms. Stylianou frequently writes for Lewis Brisbois's sports law blog, The Official Review, and also handles New York State labor law as well as general liability matters.
Read the full Licensing Journal article here.
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