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April 29, 2020

Insights from an NCAA Policy Specialist | Don’t Clap for the NIL Announcement Just Yet

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Just hours ago, the NCAA’s top governing body made an announcement supporting a proposal to regulate athletes’ rights to profit from their names, images, and likenesses (NIL). Already, sports outlets and fans are celebrating, calling it a landmark decision, and looking ahead to the return of NCAA video games. The overreactions make sense—everyone is clamoring for good news in the middle of the coronavirus pandemic. Unfortunately, this is not it. Here’s why.

First, it is important to note that the NCAA’s big “plans” are all proposals, meaning that nothing is set in stone yet. In fact, Ohio State athletic director Gene Smith, who co-chairs the NCAA’s working group, told ESPN “that a vote on the proposed changes would likely occur in January 2021” (emphasis mine). In other words, the NCAA is entertaining rule modifications, and an entire class of fall and winter athletes will be hamstrung if or when the NCAA actually decides to implement them.

Second, as usual, the NCAA is imposing strict regulations over athletes who want to use their NIL to their economic advantage. For example, athletes might be able to appear in advertisements and reference their sport and their school, but they will not be allowed to use university logos. The NCAA is also considering limiting athletic shoe and apparel endorsements, due to these endorsements’ “history of ‘encouraging or facilitating recruiting and other rules infractions.’” The NCAA’s member schools will also “have a chance to give feedback and input during the next several months” while the NCAA finalizes things, which all but guarantees more guardrails will be set around NIL regulations before any rules go into effect.

Fans shouldn’t get their hopes up for the return of NCAA video games, either. According to Big East commissioner Val Ackerman, who is a member of the NCAA’s NIL working group: “It was the group’s conclusion that group licenses, which would combine school trademarks with student-athlete NIL in products like video games, replica jerseys and trading card collections are unworkable in college sports, largely because of the absence of a collective bargaining agency to manage the terms of group NIL use on behalf of the student-athletes.” It’s a questionable train of thought, considering pro leagues like the NFL and the NBA have successfully navigated these legal hurdles for years. But the NCAA does consider college athletes to be amateurs who cannot earn money from their NIL because they are students, not employees. I would bet the NCAA’s archaic notion of athletic amateurism is where Ackerman and the working group are rooting their logic when it comes to collective bargaining, even if independent groups such as the NCPA and the NFLPA have been working together since last October to navigate this terrain in collegiate athletics as well. 

Amateurism is also why the NCAA isn’t entertaining the thought of schools paying athletes, either. Essentially, the NCAA is throwing around ideas to allow college athletes the right to be entrepreneurs, not university employees. According to ESPN, “NCAA leaders say it is crucial to keep the distinction between their organization and pro sports.” This is laughable to say the least, considering that last year, the NCAA raked in nearly one billion dollars off the backs of unpaid athlete labor, and Forbes sets the market value of elite college athletes in the multimillion dollar range. 

Even more ridiculous is the aforementioned concept of athletic amateurism, which still remains intact under the NCAA’s newest set of proposed regulations. ESPN notes, “this unique status has helped the NCAA carve out a niche in the eyes of federal judges who have ruled that the NCAA’s caps on what an athlete can receive from his or her school violate antitrust laws but have determined the schools may continue enforcing those caps because college athletes are students and not laborers.”

This is a problem. Although the NCAA might appear to be working in favor of college athletes on the surface, NCAA president Mark Emmert and other power players are communicating with Congress to pass federal regulations which would render these proposals (and state legislation pertaining to NIL regulations) moot. Emmert’s federal proposals include:

· Ensuring federal preemption over state name, image and likeness laws.

·  Establishing a “safe harbor” for the NCAA to provide protection against lawsuits filed for name, image and likeness rules.

· Safeguarding the non-employment status of student-athletes.

· Maintaining the distinction between college athletes and professional athletes.

In other words, college athletes should not be expecting to rake in multimillion-dollar contracts any time soon. Nor should they expect to be granted employee status or the right to unionize. Because, according to the NCAA, college athletes are not professionals or even laborers—they are students. And that only makes sense if you consider that the NCAA is good at profiting from college athletes, not stepping into their shoes. 

Even when proposing legislation that looks emancipatory on the surface, the NCAA is still doing what it does best: regulating its athletes instead of taking care of them. 

Follow Katie Lever on Twitter and Instagram for more NCAA policy insights: @leverfever

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