Student-Athlete Name, Image, and Likeness Rights - What to Expect in 2021 and Beyond - Jackson ...
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Student-Athlete Name, Image, and Likeness Rights What to Expect in 2021 and Beyond By Nicholas A. Plinio and Gregg E. Clifton 14 NEW JERSEY LAWYER | FEBRUARY 2021 NJSBA.COM
The world of college athletics is in a state of flux,
largely revolving around student-athlete name,
image, and likeness rights (NIL), which allow student-
athletes to receive compensation for their marketing
rights without violating NCAA bylaws or losing their
amateur status. The issue of NIL rights is being consid-
ered by nearly 30 states, with six states having passed
specific NIL laws. Several proposed federal bills also
have been introduced in the Senate and House of Rep-
resentatives. In addition, the NCAA is considering
changes to its bylaws that would grant NIL rights to
student-athletes.
In addition to state and federal legislative efforts, the U.S. Supreme Court has
NICHOLAS A. PLINIO is an associate in
agreed to consider NCAA v. Alston, which could reshape college athletics by elimi-
the Berkeley Heights office of Jackson
nating financial limits placed on student-athlete scholarships. This article details Lewis P.C. and a member of the firm’s
the current landscape of NIL rights and the developments and legal issues that will Sports Industry Group. Plinio is admitted
to practice in New Jersey and New York
dominate 2021 and beyond. and is an active member of the NJSBA
Sports Law Section. Plinio’s practice
includes counseling collegiate and profes-
State NIL Legislation
sional sports clients on labor and employ-
Presently, six states (California, Colorado, Florida, Michigan, Nebraska, and New ment matters. In addition, Plinio provides
Jersey) have passed NIL legislation. The state laws that have been enacted all have advice and counsel relating to specific
NCAA bylaw issues as well as current and
significantly delayed effective dates, except for Florida law, which will become effec- pending state, federal, and NCAA NIL
tive in July 2021. The delays are intended to give the NCAA or the federal legislature legislation.
time to enact uniform standards governing the compensable rights of student-ath-
letes marketing their name, image, and likeness.
New Jersey Fair Play Act (S-971/A-2106). New Jersey enacted its NIL law in
September 2020, allowing student-athletes to earn financial compensation from
the use of their name, image, and likeness. The Fair Play Act also authorizes stu-
dent-athletes to use attorneys and agents to negotiate NIL opportunities without it
affecting the student-athletes’ ability to continue their collegiate careers and schol-
arship eligibility.
The Fair Play Act becomes applicable in the fifth academic year following its
enactment. Under the Fair Play Act, a four-year institution is prohibited from GREGG E. CLIFTON is a principal in the
upholding any rule or other limitation that prevents college athletes from monetiz- Phoenix office of Jackson Lewis P.C and
co-leader of the firm’s Sports Industry
ing the use of their name, image, or likeness. In addition, a four-year institution is Group. Clifton is also admitted to practice
prohibited from joining any athletic association, conference, or other organization in New Jersey and is a former chair of the
with control over intercollegiate athletics if student-athletes are prohibited from NJSBA Sports Law Section. Clifton repre-
sents NCAA and NAIA collegiate clients
earning compensation from their name, image, or likeness; a student-athlete is pre- regarding rules compliance, investigatory
vented from obtaining professional representation in relation to contracts or legal matters and disciplinary hearings, Title
IX investigations and compliance issues,
matters; or the association interferes with compensation reaching a student-athlete. agent regulation, amateurism issues, and
While granting the student-athletes the right to profit from their name, image, athlete eligibility questions. He also has
and likeness, New Jersey’s law places certain obligations upon the student-athlete. extensive experience advising professional
sports franchises on various labor and
The student-athlete must disclose any deal to market their name, image, or likeness employment issues and serves as lead
to a university-designated official. In addition, student-athlete endorsers will be pro- counsel for several major league baseball
teams in their salary arbitration matters.
hibited from earning compensation in connection with certain industries: adult
NJSBA.COM NEW JERSEY LAWYER | FEBRUARY 2021 15entertainment, alcohol, gambling of Florida SB646, Intercollegiate al, Sen. Roger Wicker (R-Miss.) has intro- any kind, tobacco and electronic smok- Athlete Compensation and Rights. duced the Collegiate Athlete and Com- ing, pharmaceuticals, controlled danger- Florida’s NIL legislation, signed into law pensation Rights Act. In the House, ous substances, and firearms. If a stu- in June 2020, has gained significant Reps. Anthony Gonzalez (R-Ohio) and dent-athlete earns compensation from any attention because of its effective date: Emanuel Cleaver (D-Mo.), both former of these prohibited areas, their scholarship July 1, 2021. It is believed that the NCAA Division I football players as well, eligibility will be revoked. NCAA and affected conferences, like the have introduced the bipartisan Student California Fair Pay to Play Act SEC and ACC, which have schools in Athlete Level Playing Field Act. (SB206). California was the first state to multiple states (including Florida), may College Athlete Bill of Rights. pass NIL legislation in September 2019. seek injunctive relief to block the effec- Booker’s proposal would provide sub- The bill, with a delayed effective date tive date of the law. stantial rights to NCAA student-athletes, until 2023, has served as the model for Michigan House Bill 5217. Michi- including the right to benefit from their other state NIL legislation. The general gan’s bill is the most recently enacted name, image, and likeness. A critical dis- premise of California’s law is to allow state NIL legislation, effective July 31, tinction in this proposal would also grant NCAA student-athletes to personally 2022. Michigan’s law places specific lim- student-athletes the right to market market and earn compensation for the itations and obligations upon student- themselves as a group to capture and use of their name, image, and likeness athletes. For example, similar to New potentially share revenue from the lucra- without affecting their scholarship eligi- Jersey’s law, prior to entering into any tive video game marketplace. The bill bility. SB206 also restricts a student-ath- endorsement agreement, the student- also would prohibit schools from pre- lete from entering into shoe and apparel athlete must disclose the opportunity to venting athletes from wearing shoes of contracts that conflict with current uni- a university official at least seven days their choice during mandatory team versity agreements. New Jersey’s Fair prior to committing to the opportunity. activities, which may open the door to Play Act, as well as all of the other state Additionally, student-athletes will be endorsement deals in conflict with NIL laws, contain a similar provision. prohibited from using the University of school equipment sponsorship contracts. Colorado SB20-123, Compensa- Michigan name, trademarks, logos, or The broad language in the bill tion and Representation of Stu- other intellectual property in connec- extends beyond NIL rights and includes dent-Athletes. Like New Jersey and tion with marketing their own name, provisions that could completely over- California, Colorado permits student- image, or likeness. haul college athletics and the NCAA. athletes enrolled in state higher educa- The bill seeks to establish a nine-mem- tion institutions to profit from use of Federal NIL Legislation ber “Commission on College Athletics,” their name, image, or likeness, and to Federal NIL legislation has been appointed by the President of the Unit- hire representation to protect their introduced in both the Senate and ed States and include at least five former interests and prevent athletes from los- House of Representatives. Expect these college athletes with legal expertise. The ing eligibility for exercising NIL rights. bills to gain traction quickly as the fed- commission would take a majority of In addition, like New Jersey and Califor- eral government works to avoid a situa- the responsibility of overseeing college nia laws, the Colorado law has certain tion in which there is no uniform stan- athletics away from the NCAA. The specific disclosure requirements for ath- dard for NIL usage, leaving enforcement commission also will regulate athlete letes who do sign NIL agreements. up to competing and conflicting state endorsement contracts, certify athlete Nebraska Fair Pay to Play Act laws. It is likely a federal law will be in agents, monitor Title IX compliance, (LB962). Many of the provisions of place before the fall of 2021. and establish health, wellness, and safe- Nebraska’s NIL track those of the other In the Senate, New Jersey’s Cory ty standards for college athletes. It also NIL laws described here. However, unlike Booker, a former NCAA Division I foot- would be responsible for enforcing rules the others, the Nebraska law states that ball player at Stanford University, is laid out in the law and given subpoena “each postsecondary institution shall leading the charge with a landmark pro- power to investigate violations, along determine a date on or before July 1, posal that he and Sen. Richard Blumen- with the authority to impose penalties 2023” to begin applying the law. To date, thal (D-Conn.) introduced in December against institutions, conferences, and no school has exercised this legal right to 2020. The College Athlete Bill of Rights the NCAA. These penalties may range apply the new state law and risk poten- is by far the most aggressive NIL propos- from penalties in excess of $10 million tially violating NCAA bylaws prior to the al to be introduced on the state or feder- to suspension of officials from working formal enactment date of July 1, 2023. al level. In addition to Booker’s propos- at a school or in college sports at all. 16 NEW JERSEY LAWYER | FEBRUARY 2021 NJSBA.COM
Booker’s proposal also will undoubt- within seven days after the comple- that end, the bill also would expressly
edly significantly affect universities and tion of that draft; prohibit boosters from directly or
their athletic departments. Indeed, the • A requirement that athletic depart- indirectly compensating student-ath-
College Athlete Bill of Rights addresses ments annually disclose revenues letes and their families for use of the
not only the economic rights of ath- and expenditures, including depart- student-athlete’s name, image, and
letes, but also their health and safety ment personnel salaries; likeness.
and educational opportunities. For • A requirement that a school cannot
example, the bill’s sweeping provisions cut a team “unless all other options Unlike Booker’s proposal, Wicker’s
provide the following: for reducing the expenses of the ath- bill proposes broad anti-trust protec-
letic program, including reducing tions sought by the NCAA and its mem-
• Schools would be required to share coach salaries and administrative and ber institutions, which protect them
profits from revenue generating facility expenses, are not feasible”; from liability under competition laws
sports with athletes who play those • A requirement that schools have aca- for making changes to NIL rules, among
sports, after deducting the cost of demic credit courses related to finan- other things.
scholarships; cial literacy and life skills consistent Student-Athlete Level Playing
• Student-athletes would be guaran- with the school’s guidelines. Field Act. Rep. Anthony Gonzalez (R-
teed a scholarship for as many years Ohio), former Ohio State University star
as it takes the student-athlete to Collegiate Athlete and Compen- and NFL player, introduced a bill in the
obtain an undergraduate degree; sation Rights Act. The Senate bill House of Representatives that appears to
• A medical trust fund that would pro- competing with Booker’s College Ath- present a “middle ground” between
vide broad health care coverage for lete Bill of Rights is Wicker’s College Booker’s and Wicker’s bills. Framed as a
student-athletes and be accessible to Athlete Compensation Rights Act. Like civil rights bill, the legislation is aimed
them up to five years following the Booker’s proposal, Wicker’s bill would at ensuring that student-athletes can
end of their athletic eligibility; permit student-athletes to earn compen- capitalize on their earning potential in a
• A wide range of health and safety sation for use of their name, image, or similar way to their peers in music, art,
guidelines set by the Centers for Dis- likeness, in effect creating a uniform, or other studies who have always been
ease Control and Prevention; national framework for NIL compensa- able to earn compensation from their
• A requirement that athletic trainers, tion. Additionally, it would: work product.
team medical personnel, academic Like Wicker’s proposal, the Level
advisers and tutors operate and pro- • Ensure student-athletes have access Playing Field Act places high impor-
vide services to student athletes to educational resources regarding tance on protecting amateurism by pro-
“independently from the athletic use and compensation for use of their hibiting athletes from being considered
department”; name, image, and likeness; employees and preventing academic
• A ban against coaches and staff influ- • Protect student-athletes and their institutions from directly compensating
encing academic decisions such as families from deceptive business prac- athletes. It does not, however, include
the selection of academic majors and tices or exploitation from unscrupu- the same anti-trust provisions as Wick-
courses; lous actors; er’s bill, which leaves the door open to
• A prohibition against schools impos- • Prohibit third parties from entering potential lawsuits against institutions
ing restrictions on student-athletes’ into NIL agreements or offering NIL should they stand in the way of a stu-
speech beyond those imposed on agreements to a student-athlete prior dent-athlete’s ability to profit from their
other students; to enrollment at an institution; and name, image, and likeness. The bill also
• The elimination of restrictions and • Authorize and direct the Federal does not contain group licensing provi-
penalties related to transferring from Trade Commission to select and over- sions, which makes it a less attractive
one institution to another or break- see a private, independent, nonprofit option for student-athletes.
ing a national letter of intent; entity to develop and administer NIL
• The ability for student-athletes to rules within collegiate athletics. NCAA Response to NIL Legislation
enter a professional draft and return • Wicker’s proposal focuses on preserv- In addition to the state laws
to college athletics, so long as they do ing amateurism by prohibiting col- described above, in late-January 2021,
not get paid by a professional team leges and universities from classifying the NCAA delayed its anticipated
and inform the school of their return student-athletes as “employees.” To approval of the most significant amend-
NJSBA.COM NEW JERSEY LAWYER | FEBRUARY 2021 17ments to its bylaws in recent history fol- tion, the U.S. Supreme Court has shifted Conclusion
lowing receipt of a letter from the U.S. the focus to the courts. On Dec. 16, With groundbreaking state and feder-
Department of Justice Antitrust Divi- 2020, the Supreme Court agreed to hear al NIL legislation on the horizon, the
sion. The letter cautioned the NCAA of an appeal from the NCAA and several potential that the NCAA will adopt the
potential anti-trust issues arising from high-level conferences in NCAA v. most significant amendment to its
granting name, image, and likeness Alston, a case challenging the NCAA’s bylaws in decades, and the Supreme
rights to student-athletes. The delayed restrictions on compensation student- Court ready to rule on student-athlete
NCAA bylaw amendments, designed to athletes can earn while participating in compensation, 2021 should see the
provide a unified standard to govern all collegiate athletics. The appeal comes
1
most significant changes to collegiate
NCAA institutions, seeks to reduce the from a U.S. Court of Appeals for the athletics in history. With these changes
likelihood that various state laws will Ninth Circuit ruling that the NCAA’s will undoubtedly come unique legal
cause confusion and conflict. Originally, limits on providing education-related issues that will shape the landscape of
the NCAA sought to have their bylaw benefits to student athletes violate fed- sports law for years to come.
changes become effective prior to the eral antitrust laws. Relying on the 1984
2021–2022 academic year. It is likely case, NCAA v. Board of Regents,2 the
that the NCAA will still seek to imple- NCAA maintains that “athletes must Endnotes
ment some version of its proposed not be paid” and seeks continued lati- 1. See American Athletic Conference, et
amendments following additional dis- tude toward its unique amateurism al. v. Alston, et al., No. 20-520 (U.S.
cussion with the Department of Justice. model. Student-athletes argue that the
3
2020).
The Supreme Court Weighs In: NCAA is simply attempting to secure an 2. Nat’l Collegiate Athletic Ass’n v. Bd. of
NCAA v. Alston antitrust exemption and that Congress Regents, 468 U.S. 85, 102 (1984).
While the legal focus in college ath- and the states are already in the process 3. See Alston, et al. v. National Collegiate
letics has been on the expansion of NIL of scaling back limits on student-athlete Athletic Association, Case No. 19-
rights for NCAA student-athletes compensation. The case will likely be set 15566, Dkt. Entry 149 (N.D. Cal.
prompted by state and federal legisla- for oral argument in the spring of 2021. 2020).
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