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October 15, 2020

Name, Image, and Likeness Update | NCAA Proposal

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On Monday night (10-5-2020) Sports Illustrated announced the NCAA’s latest proposal for modifications to its existing NIL rules. Although the proposal isn’t perfect, it’s the most liberal proposal yet, and closely mirrors key points featured in the handful of state bills that have passed. Here are a few things athletes should know about the NCAA’s latest announcement:

1.     This is just a proposal. The NCAA votes on rule modifications every January, and if 2020 has taught us anything, it’s that a lot can change in a few months. It’s possible that the NCAA’s proposal won’t pass, or will be modified, and there’s also a (slim) possibility that a federal bill will go into effect before then. That last part is important, because. . .

2.     Federal legislation supersedes NCAA policy. Even if the NCAA’s new proposal passes at the NCAA level, all bets are off if and when a federal bill passes at any time in the future. Several bills are floating around at the federal level, and the bills that have garnered support from the NCAA all include an antitrust exemption, meaning, should that legislation pass, the NCAA would be free to enforce its current NIL policies with federal backing. If that happens, it would undermine decades of activist work on the NIL front, and could keep the NCAA’s current policies in place indefinitely. Which is a problem, because. . . 

3.     Even the NCAA’s latest, most liberal policy proposal is still restrictive. Although the new proposal is looser than any potential NIL policy we’ve ever seen from the NCAA, the proposed rules would still require athletes to report their involvement with agents to an unnamed third-party administrator, allows universities to limit which industries athletes can support, and prohibits athletes from using university logos for marketing, or entering into contracts that conflict with university sponsorships. There is also no word on collective bargaining, which means that NCAA video games will likely not be coming back any time soon. 

The timing of the proposal is also worth noting. The state of Florida recently passed an NIL bill that will go into effect in July of 2021, allowing college athletes to profit from their NILs with similar restrictions as recently put forth by the NCAA. Although it is remotely possible, the NCAA more than likely realizes that it probably won’t pass a federal bill within the next nine months (especially not with the presidential election coming up). I see the NCAA playing long ball here: modify its rules to fit the Florida law so it can avoid a patchwork of state laws while continuing to pursue federal intervention that would trump both state laws and its own policy modifications. The NCAA appears to be acquiescing to Florida simply to buy time, and if it plays its cards right, it could eventually take control of NIL policies at the federal level, which, although terrible for college athletes, has always been the NCAA’s end goal. In other words, lose the battle to win the war.

That said, even under the NCAA’s best proposal yet, college athletes’ rights to the free market are still restricted in ways that other students are not, and much of this legislation is still up in the air. Athletes hoping to cash in on their NILs would be smart to continue monitoring headlines, Senate hearings, and federal laws to keep up to date. Personally, I’m not celebrating until the NCAA’s federal antitrust exemption is completely off the table.

Katie Lever is a former Division 1 athlete and current doctoral student at the University of Texas at Austin, where she studies NCAA discourse. Follow her on Twitter: @leverfever

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