The NCAA's Proposed Name, Image, And Likeness (NIL) Legislation Fails College Athletes

The NCAA's proposal has three significant areas of weakness.

The NCAA Division I Council has submitted proposed amendments concerning college athletes’ right to commercially exploit their names, images, and likenesses, which will be voted on in January 2021.

I agree with Florida Representative Chip LaMarca, sponsor of the legislation that will make Florida the first state to independently provide athletes these very important rights, who tweeted, “Sadly, the NCAA failed again & the states must continue to pass #NIL laws until the Feds create a solution. @RepAGonzalez has the leadership and knowledge to get it done.” Representative LaMarca tagged U.S. Representative Anthony Gonzalez, who co-sponsored the Student Athlete Level Playing Field Act, which I believe is the most practical and realistic federal legislation focused on this issue.

What is so bad about the NCAA’s proposal? Here are three significant areas of weakness.

1. It is overbroad and provides schools too much power.

“An institution may prohibit a student-athlete’s involvement in name, image and likeness activities that conflict with existing institutional sponsorship arrangements,” states proposed NCAA Bylaw 12.5.3.1.3. It continues, “An institution, at its discretion, may prohibit a student-athlete’s involvement in name, image, and likeness activities based on other considerations, such as conflict with institutional values, as defined by the institution.”

This is the opposite of creating a free market where athletes are able to enter into endorsement deals and otherwise license their publicity rights to third parties for commercial gain. Instead, this particular provision essentially allows a university to pick and choose when it wishes to subjectively prohibit a player from entering into a deal. “Institutional values” are to be defined by the institution and, without a set of objective values that do not shift on a case-by-case basis, there should be a fear of the values changing whenever it suits the university.

2. It improperly tries to shield athletics departments from losing deals.

Sponsored

The second sentence of the newly proposed NCAA Bylaw 12.5.3.1.2 says, “a student-athlete’s name, image or likeness may not be used by an athletics equipment company or manufacturer to publicize the institution’s athletics program uses its equipment.” This is entirely inequitable.

For instance, a football player at the University of Florida would likely not be permitted to enter into his own economic relationship with Jordan Brand, because the team is already sponsored by the company and a relationship between the player and brand could be construed as one where the brand is publicizing that the school uses the equipment. Meanwhile, nothing prevents Nike, the official sponsor of the National Football League, from entering into separate arrangements with individual players for the promotion of the brand and so that the brand can use those players’ publicity rights. Furthermore, nothing prevents the school from allowing the brand to publicize that the players use the equipment on the field.

This provision seems to be intended to protect universities from losing valuable partnerships based on a theory that the brands will choose to dedicate their resources to individual players as opposed to the entire athletic department. It is a flawed theory and, even if true, improperly denies college athletes from truly being able to exploit their publicity rights.

3. It plays favorites with institutions over athletes.

Proposed NCAA Bylaw 12.5.3.1.2 begins by stating, “A student-athlete shall not engage in name, image and likeness activities involving a commercial product or service that conflicts with NCAA legislation (e.g., sports wagering, banned substances).”

Sponsored

I can accept college athletes being prohibited from affiliating with certain industries, but I cannot comprehend why the NCAA would ban athletes from involvement with those brands while allowing member institutions to earn money from those types of relationships. For instance, why should a college athlete be restricted from entering into a publicity rights arrangement with a sports wagering company when the University of Colorado is earning a minimum of $1.625 million from a five-year deal with sports gambling company PointsBet? Why should a college athlete be told he cannot license his name to a liquor brand when New Mexico State is not prohibited from doing a licensing deal to create a “Pistol Pete” whiskey?


Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.