The Future of NCAA Name, Image & Likeness Legislation

Background

            As it stands now, 26 states representing 69% of the United States population have passed or are drafting state legislation surrounding Name, Image and Likeness (NIL) pertaining to NCAA Student Athletes. However, there is much uncertainty to what it will actually mean as states continue to draft and pass NIL legislation. Previously, the NCAA stated that the NIL bill California passed was “Unconstitutional” and an “existential threat” to the NCAA. Now, the NCAA has altered their stance and seems to be open to the idea of assistance from the Federal Government in the creation of federal NIL legislation. Ultimately, this would allow the NCAA to have their hand in the creation of a uniform NIL bill.

The Current Disconnect

            What the NCAA envisions for NIL legislation is somewhat unclear. This is likely why states are taking matters into their own hands. In October of 2019 California was the first state to enact a NIL bill. This bill will go into effect in 2023. Shortly after, the NCAA stated that beginning in January of 2021 Student-Athletes will be able to profit from their NIL; so long as it is consistent with the, “collegiate model.” This has been misleading, as no one truly knows what the NCAA means by this. A “collegiate model” approach is certainly not what states are currently drafting or passing. Therefore, it seems that a state by state approach is more of a place holder than actually something that will carry the future of NIL legislation. It is important to consider that the NCAA has standing, and is almost certain to sue individual states that pass NIL legislation. This will be done to buy time for the NCAA in an effort to create the uniform federal NIL bill they desire.

The Solution: A Federal NIL Bill

            A federal NIL bill with input from federal legislators and NCAA executives is the “clearest” path to a solution. This would lead to necessary dialogue and hopefully the development of a uniform bill that would apply to all states. This hypothetical federal NIL bill would allow for all schools to recruit, compete, and interact on a “level” playing field. After all, fairness and uniformity is what NCAA President Mark Emmert has stated the main focus is. However, I suspect the NCAA’s underlying goal is to regulate how athletes can benefit from their NIL in an effort to maintain the “collegiate model.”

            Federal legislators recently “grilled” Emmert during a February meeting suggesting “radical modifications”, while expressing concerns regarding the “inequalities” that NCAA student athletes face. Jon Tester, a Senator from Montana told Emmert that the NCAA doesn’t want the help of federal legislators, but instead wants federal legislators to solve this issue for the NCAA. Shockingly, Emmert told Tester that the NCAA has “nothing” written for a proposed federal bill. Thus, the necessary help that the NCAA needs to create the federal bill they desire is clearly far from becoming a reality. 

Moving Forward:

            It will be interesting to see how this plays out as more and more states pass legislation. The NCAA desperately needs a uniform bill, but as seen, federal legislators are befuddled by their lack of a proposal for what the bill would look like. Time is ticking. If Florida passes their state bill, which is projected to be enacted around July of 2021, the NCAA will have no option but to act relatively quickly and begin to draft suggestions for federal legislators. This will likely lead to the NCAA compromising some of their demands as it pertains to the creation of a federal NIL bill. With all of this considered, I suspect that a federal NIL bill will be passed by the Spring of 2021. The burning question is, what will it look like?