What is Name, Image and Likeness (NIL)?
Arguably the greatest transformational change to hit college sports in the last quarter-century, this topic aims to provide an opportunity for student-athletes to be compensated for the use of their name, image, and likeness.
Simply, a person’s name, image, and likeness (NIL) are three elements that make up a legal concept known as “right of publicity.” Common examples of NIL in the professional sports space include the usage of an athlete’s name on a jersey for sale, an athlete making an appearance on a commercial or advertisement, and a computer-generated image of an athlete appearing in a video game.
A Brief History of What Got Us Here
Since the birth of intercollegiate athletics, the concept of amateurism and individual publicity rights have been a constant debate. The latter professional example, however, drew major attention to this topic in more recent years. In 2009, Ed O’Bannon, a former UCLA men’s basketball player and the NCAA Tournament’s Most Outstanding Player in the 1995 season, filed a lawsuit against the NCAA and the Collegiate Licensing Company for the use of his likeness in the popular EA Sports video game NCAA Basketball 09. In 2014, the District Court ruled in favor of O’Bannon which led to the discontinuation of the college sports-themed EA video games, further fueling the debate of whether or not student-athletes should have the freedom to be compensated for their NIL. Despite O’Bannon’s victory at the District level, this case was denied hearing by the Supreme Court in 2016.
Flash forward three years – California Governor Gavin Newsom signed “The Fair Pay to Play Act” on September 27, 2019, and since then Florida, Nebraska, New Jersey, Colorado, and Michigan have passed similar legislation. This whirlwind has led to 40 other states joining in the process of drafting legislation. Each state, however, has developed its own unique approach to how student-athletes can profit off of their NIL.
In December 2019, the NCAA began reaching out to Congress for assistance in solidifying uniform, federal legislation with the belief that a patchwork of state laws would create inequity among schools, particularly in the recruiting process. Following a series of Congressional hearings, NIL has garnered significant conversation in Washington and since led to the introduction of five federal bills, with the most recent being Senator Jerry Moran’s (R-KS) “Amateur Athletes Protection and Compensation Act of 2021”.
Despite a slew of legislative noise coming from the state and federal level, the NCAA was working internally to create an NIL framework. Through the majority of the work, the process was federated to each of the three divisions in the NCAA, and the respective governance structures finalized their proposals under the same overarching guardrails. The proposed legislation was drafted to be voted on during the January 2021 NCAA Convention and given an effective date no later than the start of 2021-22 academic year.
However, on the eve of the Convention, the U.S. Department of Justice expressed concern to NCAA President Mark Emmert over potential antitrust violations in the NCAA NIL proposals. Fearing legal repercussions, each Division made the decision to delay the vote and the Association has been in a holding pattern on the subject, awaiting for the results of both the federal NIL landscape as well as the U.S. Supreme Court’s hearing of the NCAA v. Alston case.
Current NCAA Regulations on NIL
Under existing NCAA guidelines, student-athletes cannot be paid for athletic-related activities, such as autograph signings or endorsements. Citing the Association’s long standing principle of amateurism, NCAA President Mark Emmert has stood by the notion that “college athletics is about college students playing other college students, not employees playing employees.”
Currently, there is variance among the three divisions on NCAA regulations regarding how student-athletes can use their NIL. Although the existing regulations are very intricate, athletics compliance staff devote their time to both applying the rules and educating student-athletes on the “do’s” and “don’ts”.
“In general, to maintain NCAA eligibility, Division I student-athletes may not promote or endorse a commercial product or service, even if they are not paid to participate in the activity. Athletes may use their image to continue participating in non-athletically related promotional activities if they were initiated before college enrollment.”
However, several exceptions exist related to a student-athlete’s NIL, most commonly in charitable, educational, nonprofit promotions, media activities, national governing body promotions, and camp and congratulatory advertisements. Furthermore, the NCAA notes that, “Since 2015, over 98% of waivers submitted to allow student-athletes to use their name, image or likeness to promote a non-athletically related business or product have been approved.”
In the entrepreneurial space, there have been a handful of examples of student-athletes receiving waivers. For example, Princeton swimmer Matthew Marquardt teamed up with his brother to design, create, and market a product for competitive swimmers to use as a foothold for backstroke starts. Another example is Katarina Samardzija, a former tennis player from Grand Valley State University, who started her own business and created the Wrist Locker, a wrist wallet created to hold valuables when working out. The common thread in these examples lies in their origin and connection to the student-athlete’s academic experience.
Unlike existing waiver processes, the proposals on the table are taking a new step towards allowing student-athletes to expand their NIL marketing beyond the academic realm and into the personal brand space.
Looking Ahead
Altogether, NIL has captured the attention of many key players around the country. From student-athletes to congressmen and congresswomen, the NIL conversation has found its way to some of the most influential figures in the country. Whether the NCAA, the individual states, or the federal legislation prevails come August 2021, one thing that remains is the need for student-athletes to be able to understand, navigate, monetize, and maximize their endorsement value.
Check out the Opendorse Ready Program for the solution to best prepare your program and student-athletes for what’s ahead.
