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August 3, 2020

Federal Name, Image, and Likeness Bill Updates

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It’s been hard to keep up with all the name, image, and likeness (NIL) chatter this summer, but the NCAA has once again catapulted the conversation ahead for all the wrong reasons. Last week, the Association presented Congress with a draft of federal name, image, and likeness proposals that make for some pretty bold (not in a good way) potential legislation. In addition, the four-page draft, which, according to Sports Illustrated, the NCAA is aiming to finalize by November 1st, doesn’t look very promising to athletes. 

In its proposal, the NCAA is requesting full legal immunity from state NIL bills as well as full control over determining NIL rights for college athletes, backed by federal authority. Should the bill pass, it is set to go into place in June of 2021, right before Florida’s pay-for pay bill will go into effect on July 1st. The finer points (by section) of the NCAA’s proposal include:

  • Section 3 prohibiting the states to establish or continue “any provision that regulates the compensation, intellectual property rights, employment status, or qualifications of amateur intercollegiate athletes, including with respect to the use of names, likenesses, or images of such athletes.”   
  • Section 4 essentially stating that college athletes will not have rights to employee status based on their participation in their sport
  • Section 5 providing the NCAA with a legal safe harbor, stating that the NCAA “shall be protected from legal challenges operating from federal or state unfair competition statutes.” Essentially, this would grant the NCAA an antitrust exemption at the federal level. 
  • Section 6 outlining the NCAA’s guidelines and procedures for federal NIL laws, to be established by the NCAA no later than June 30, 2021. According to the document, the NCAA will establish rules pertaining to:
    • Maintaining the “principle of amateurism” in collegiate athletics
    • The administration of financial aid, benefits, and other payments associated with college athletes’ NILs
    • Determining the eligibility of athletes who accept payment for use of their NILs
    • Forming rules around collective bargaining agreements (think team licensing or NCAA video games)
    • Enforcing punishments for rule violations in regards to athletic NIL

This bill draft looks incredibly restrictive for athletes who want to earn money from their NILs, but there are a few things to keep in mind. First, this is a bill draft. Nothing is set in stone, and nothing has been written into law yet. The NCAA should have a final version ready by November, so all of these potential stipulations could change drastically by then. 

Second, just because the NCAA is aiming to finish its final draft in a few months doesn’t mean that the bill is guaranteed to pass at the federal level. If it doesn’t, this bill proposal could be translated into NCAA bylaws, and in that case, these rules would affect college athletes who don’t compete for universities covered by a state NIL bill. Given that the Florida bill is set to go into effect on July 1st, 2021, the NCAA is on a time crunch if it wants its federal legislation to beat out state bills. The legality of the NCAA’s proposed legislation and the amount of oversight the NCAA is requesting is also extremely questionable and subject to scrutiny until then. Like many aspects of life in the age of coronavirus, the future of NIL legislation at the federal level is very much up in the air.