This is an email from NCAA v. Student Athletes , a newsletter by Sports and Entertainment — A Student-Athlete Guide and Play Book.
What’s next with NIL(name image likenesss) Rules in 2022?
Why did the NCAA do an about face on NIL rules?Thank you California Legislature and the US Supreme Court for bringing truth to this Power.
In May 2021, the NCAA made a statement on it’s website opposing NIL state legislation. The NCAA also asked for protection at the federal level to insure the institution is not held accountable for anti-trust law suits. The NCAA statement provides:
“It is critical that college sports are regulated at a national level. This ensures the uniformity of rules and a level playing field for student-athletes. Some of these laws allow for nearly unregulated use of NIL by student-athletes, while other bills under consideration would erode the NCAA’s ability to maintain the collegiate model even further, undermining the NCAA’s model of amateur intercollegiate athletics and threatening to transform student-athletes into paid professional employees of their schools. The evolving legal and legislative landscape around these issues could not only undermine college sports as a part of higher education but also significantly limit the NCAA’s ability to meet the needs of college athletes moving forward.” See: https://www.ncaa.org/questions-and-answers-name-image-and-likeness
On June 21, 2021, Supreme Court ruled on the consolidated two petitions in NCAA v. Alston. This decision considered whether NCAA is in violation of anti-trust laws. Oral arguments were heard on March 31, 2021.
“We are pleased the U.S. Supreme Court will review the NCAA’s right to provide student-athletes with the educational benefits they need to succeed in school and beyond,” Donald Remy, the NCAA’s chief legal officer, said in a statement. “The NCAA and its members continue to believe that college campuses should be able to improve the student-athlete experience without facing never-ending litigation regarding these changes.”
Even though the athletes had argued there was no reason for the court to review the appeals court decision, one of their lawyers expressed confidence in the outcome.
Jeffrey Kessler, a prominent sports labor lawyer and frequent NCAA opponent, said in an emailed statement: “We look forward to the Supreme Court reaffirming that the antitrust laws apply to the big business of Division I basketball and FBS football with full effect and that the era of athlete exploitation at our biggest colleges and universities must come to an end.” https://www.washingtonpost.com/politics/courts_law/supreme-court-ncaa/2020/12/16/90f20dbc-3fa9-11eb-8db8-395dedaaa036_story.html
On June 21, 2021, the Supreme Court issued not just a decision, but a wake up call for the NCAA. Could this decision also be a call for all student athletes to unite to negotiate working conditions and health insurance for future generations? Is this decision the “Time Out” and “Time’s Up” for the NCAA that has been coming for years?
Make no mistake, the NCAA is not just about sports, it’s big business and those at the top of this institution have reaped obscene amounts of money from the blood, sweat and tears and hard work of student athletes over many years. $4 million for President of NCAA, $2–3 million plus salaries for Commissioners, and $11 million plus salaries for various coaches, and what do the student athletes get? An “education.”
The Supreme Court sees it’s all about the money and what an education their decision is for all to see the billions of dollars at issue. It’s decision sums it up best:
“At the center of this thicket of associations and rules sits a massive business. The NCAA’s current broadcast contract for the March Madness basketball tournament is worth $1.1 billion annually.
Beyond these sums, the Division I conferences earn substantial revenue from regular-season games. For example, the Southeastern Conference (SEC) “made more than $409 million in revenues from television contracts alone in 2017, with its total conference revenues exceeding $650 million that year.” All these amounts have “increased consistently over the years.”
Those who run this enterprise profit in a different way than the student-athletes whose activities they oversee. The president of the NCAA earns nearly $4 million per 8 NATIONAL COLLEGIATE ATHLETIC ASSN. v. ALSTON Opinion of the Court year. Brief for Players Association of the National Football League et al. as Amici Curiae 17.
Commissioners of the top conferences take home between $2 to $5 million. Ibid. College athletic directors average more than $1 million annually. Ibid. And annual salaries for top Division I college football coaches approach $11 million, with some of their assistants making more than $2.5 million. Id., at 17–18. https://www.supremecourt.gov/opinions/20pdf/20-512_gfbh.pdf
Thanks to this decision and to the numerous state laws which are being passed like lightning storms racing across the country, it’s getting closer to “Time’s Up” for colleges and now some top student athletes in some states will have the ability to get paid for their name, image and likeness and hard work — day in and day out.
On June 30, 2021, only nine days after this groundbreaking Supreme Court decision, the NCAA changed it’s mind and rules regarding NIL.
On this day, the NCAA announced a brand new uniform NIL for all three divisions. The new policy suspended the NCAA NIL rules for all incoming and current student-athletes in all sports.
A press release on the NCAA website illustrates this about face.
“This is an important day for college athletes since they all are now able to take advantage of name, image and likeness opportunities,” NCAA President Mark Emmert said. “With the variety of state laws adopted across the country, we will continue to work with Congress to develop a solution that will provide clarity on a national level. The current environment — both legal and legislative — prevents us from providing a more permanent solution and the level of detail student-athletes deserve.”
The policy provides the following guidance to college athletes, recruits, their families and member schools:
Individuals can engage in NIL activities that are consistent with the law of the state where the school is located. Colleges and universities may be a resource for state law questions
- College athletes who attend a school in a state without an NIL law can engage in this type of activity without violating NCAA rules related to name, image and likeness
- Individuals can use a professional services provider for NIL activities.
- Student-athletes should report NIL activities consistent with state law or school and conference requirements to their school.
“Today, NCAA members voted to allow college athletes to benefit from name, image and likeness opportunities, no matter where their school is located,” said Division I Board of Directors chair Denise Trauth, president at Texas State. “With this interim solution in place, we will continue to work with Congress to adopt federal legislation to support student-athletes.” T
According to the press release, “While opening name, image and likeness opportunities to student-athletes, the policy in all three divisions preserves the commitment to avoid pay-for-play and improper inducements tied to choosing to attend a particular school. Those rules remain in effect.”
“The new policy preserves the fact college sports are not pay-for-play,” said Division II Presidents Council chair Sandra Jordan, chancellor at the University of South Carolina Aiken. “It also reinforces key principles of fairness and integrity across the NCAA and maintains rules prohibiting improper recruiting inducements. It’s important any new rules maintain these principles.” https://www.ncaa.org/about/resources/media-center/news/ncaa-adopts-interim-name-image-and-likeness-policy
ln many sports, individuals can only have so much ability to affect the outcome of a game. For example, one talented person on the field will not guarantee the overall team will be able to score enough points to win. Likewise, student-athletes may only have the leverage needed to level the playing field when they work together.
The NCAA, like the old Hollywood studios, will hold the ultimate power over student-athletes and whether they can be compensated fairly for their hard work and/or earn health insurance until and unless student-athletes organize and come together as one to leverage power against one of the most powerful institutions in our country, the NCAA.
Here are three things we know now:
- Many top student-athletes in Alabama, Florida, Georgia, Mississippi and New Mexico may be able to get representation and garner proceeds from the use of their NIL starting July 1, 2021 and on Septemer 1, 2021, student-athletes in California may be able to get representation and proceeds for the use of their NIL.
- The NCAA’s policy on NIL was forever changed by the California’s courage to pass the first “Fair Pay to Play” act and the June 20, 2021 Supreme Court ruling.
- Congress has the power to grant student athletes the NIL rights, to allow student athletes to be represented by lawyers and agents, and most importantly, to make it legal for student-athletes to come together to form a union which could increase their leverage for minimum wages, health care, and the ability to profit from their NIL. Until then, student-athletes across the nation will not have equal rights.
About the Author: Pamela Conley Ulich is an Attorney in Los Angeles and a Broker for the Sports and Entertainment Division of Douglas Elliman of California. She served as In-House Counsel at the Directors Guild of America and Litigation Supervisor for the Screen Actors Guild (now SAG/AFTRA). Pamela is an adjunct lecturer in law at USC School of Law where she teaches “Dealmaking in the Entertainment Industry.” She previously taught Entertainment and Labor Law courses at Pepperdine Law School. Her law review article on runaway production was published in the United States Congressional Record. She is passionate about family, sports and fighting for those who have been exploited by powerful institutions.