NCAA Representatives Testify on Capitol Hill Urging A Consistent National Approach to Athlete Name, Image, and Likeness Compensation.

Governor Gavin Newsom and the California legislature shook up the collegiate sports landscape with the introduction and passing of legislation allowing college athletes to benefit from their name, image, and likeness (NIL) in 2019. Several states have followed California’s legislative lead and proposed similar legislation—with some duplicating the exact terms of the California law, up to and including the delayed effective date of the proposed legislation until July 1, 2023. While others, like New York, have added specific costs for colleges and universities to the cost neutral California law in their proposed legislation. In addition, a number of other states, including Florida, Pennsylvania, and Michigan, have proposed NIL legislation that would go into effect as early as summer 2020.

NCAA President Mark Emmert, Big-12 Conference Commissioner Bob Bowlsby, University of Kansas Chancellor Douglas Girod, and NCAA Student-Athlete Advisory Committee Chair Kendall Spencer have testified before a Senate subcommittee regarding NIL athlete compensation. During the hearing,

Emmert acknowledged athletes should be able to benefit financially from their NIL but raised concerns about new aggressive state legislation that does not allow the NCAA the time it needs to enact changes and also preserve the “collegiate model.”

Emmert and Girod also voiced concerns during their testimony over patchwork state legislation across the country that will lead to an unlevel playing field among the NCAA’s member institutions. Bowlsby expanded on these concerns and

cautioned against an “open market of recruitment” that would put smaller and rural institutions at risk to constant poaching of their athletes by institutions with more resources and larger markets.

Ramogi Huma, Executive Director of the National College Players Association – a nonprofit advocacy group for college athletes which claims to have over 20,000 members from Division I campuses, offered an alternative perspective at the same hearing. Huma acknowledged that federal legislation could be helpful in establishing “guardrails” for the changing athlete compensation landscape. However, referring to the O’Bannon litigation in the Ninth Circuit, Huma argued that the NCAA should not be granted an anti-trust exemption which will continue to artificially cap athlete compensation to advance of the illusion of “competitive equity.” Huma asked that any congressional action support rather than hinder the legislation pending in the states which will open up marketplaces for athletes.

Montana Senator Jon Tester noted that the current system is broken and the concept of having fifty different states enacting fifty different rules will pose a problem. However, Tester cautioned against Congress making a solution. Rather, Tester urged the NCAA to advance its timeline and share the proposals it will consider this April with the subcommittee to allow Congress to help the NCAA solve the athlete compensation problem.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the NCAA’s efforts to address the NIL issue, the various state legislative proposals and the anticipated introduction of federal legislation. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

As The NCAA Formulates Options, More States Opt To Use Legislation As The Solution For Name, Image and Likeness Rights

While NCAA President Mark Emmert addressed the attendees at the NCAA Convention in Anaheim, California, he acknowledged the issues currently facing the NCAA with regard to name, image and likeness compensation rights for student-athletes. Emmert stated, “2020 can’t be a year of business as usual. We’ve got to double down on the opportunities that we provide to our students.” Emmert acknowledged the potential need for solutions to come from outside the NCAA, acknowledging, “…in some case, we need help from Congress…, but this is our job and we got to be clear about it. This is ours to improve and make better.”

While some had anticipated that the NCAA’s annual convention would lead to the announcement of a proposed solution to the name, image and likeness issue, the NCAA remained steadfast that the short term goal for the association is to be able to forward recommendations to the NCAA’s Board of Governors in April that can be a basis for potential legislation to be considered and voted upon by next January.

Gene Smith, co-chairman of the NCAA working group established to study the name, likeness and image issue, commented,

“Everyone’s still talking, nothing’s been thrown out. Right now, everything’s on the table.”

Dr. M. Grace Calhoun, University of Pennsylvania athletic director and the chairwoman of the NCAA’s Division I Council, said small groups of athletic administrators are examining potential areas where athletes could earn money and that there is “consensus” to allow student-athletes to profit from their name, image and likeness in a “work product” situation. She suggested that this could cover things such as starting a small business, earning money for writing a book or charging for lessons in their sport. However, she cautioned, “we’re dealing with student-athletes, and when you look at the principles we’ve established, we won’t cross that line from them being students and turning into employees.”

As the NCAA asserts that it needs additional time to address this issue, new states continue to join the more than two dozen states and introduce legislation while others proceed with the process of formerly advancing bills into law.

In Michigan, House Bill No. 5217, originally introduced in November, has now passed the Michigan House Oversight Committee and continues onto the Ways and Means Committee for further consideration toward becoming law. The bill, similar to the California law, would protect the rights of student-athletes to enter into endorsement agreements for their name, image and likeness without risking their status as collegiate athletes.

In addition, the bill contains specific language addressing a concern regarding the potential use of name, image and likeness rights by colleges as a recruiting tool to attract student-athletes.

The bill would specifically prevent colleges and universities from providing a prospective student-athlete “who will attend a postsecondary educational institution” with compensation for their name, image or likeness.

Unlike other pending state legislation will delayed effective dates, the Michigan bill would become effective July 1, 2020.

While the proposed legislation moves forward in Michigan, Arizona legislators have just introduced legislation at the beginning of 2020 legislative session to amend existing law to address college athletics. Arizona House Bill 2143, introduced by Representative Anthony Kern, provides name, image and likeness rights authorizing student-athletes to receive compensation similar to most other states. The proposed amendment would also restrict colleges and universities from “providing a prospective student-athlete with compensation in relation to the use of the student-athlete’s name, image and likeness.”

Senator Kern commented,

“the NCAA makes millions of dollars, universities make millions of dollars off of these student athletes names. Let them make some money on name, image and likeness.”

Kern further commented on the reason for the August 31, 2021 effective date of the proposed legislation, “I don’t want to lose Arizona talent, Arizona students to California.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the NCAA’s efforts to address the name, image and likeness issue and the various state legislative proposals and the potential introduction of federal legislation. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Virginia Considering Student-Athlete Name, Image and Likeness Legislation

Virginia has joined the ever-expanding number of states to introduce proposed legislation that would permit student-athletes to benefit from the marketing of their name, image and likeness. In fact, three individual bills have been introduced for consideration by the 2020 General Assembly, all of which would allow collegiate athletes to be compensated for the commercial use of their name, image, and likeness. These bills are Senate Bill 464 (Sen. Bryce Reeves – R), House Bill 300 (Del. Marcus Simon – D), and House Bill 811 (Del. Jason Miyares – R-82nd District). If passed, all of the proposed bills would be effective on July 1, 2024.

The Virginia legislative effort follows the lead of California’s name, image and likeness law, signed by California Governor Gavin Newsom on September 30, 2019 (effective date July 1, 2023). The California law made the Golden State the first to recognize the rights of student-athletes to market and profit from the use of their name, image and likeness and to hire agents to assist with the negotiating and signing endorsement deals without fear of reprisal from their university or the NCAA.

Similarly, each of Virginia’s three proposed bills prohibit universities, athletic associations, and athletic conferences from preventing student athletes from being paid for the commercial use of the name, image, and likeness (such as from their use in video games, jersey sales, and other memorabilia and merchandise). Each of the bills would also prohibit universities, athletic associations, and athletic conferences from preventing student-athletes from hiring agents or revoking scholarships based on an athlete’s profiting from their name, image, and likeness.

However, the three bills contain significant differences. For example,

House Bill 811, would amend the Code of Virginia by adding a section numbered 23.1-408.1 and its definition of “student athlete” would limit the benefits of name, image and likeness rights to only those who participate in Division I football at the Football Bowl Subdivision level.

The “football” limitation contained in the definition would deny other non-football student-athletes within the state from taking advantage of their individual marketing rights.

Unlike California’s law which gained initial support based upon its cost neutral basis to colleges and universities, Senate Bill 464 would not be limited Division I football players but it would create costs to each covered school. It would require that both private and public universities create an injury compensation fund from a percentage of the university’s athletics revenues for athletes that suffer career or season-ending injuries. Senate Bill 464 would also create a wage fund from a percentage of the university’s athletic revenues that would be distributed equally among each student athlete irrespective of his or her sport. The proposed language of the bill specifically requires each private institution of higher education and each baccalaureate public institution of higher education to establish:

  1. a sports injury compensation fund into which the institution shall deposit 7.5 percent of the revenue earned from its intercollegiate athletics programs and from which any student-athlete who suffers a serious or career-ending injury during a practice or competition may apply for compensation upon his graduation, and
  2. a wage fund into which the institution shall deposit 7.5 percent of the revenue earned from its intercollegiate athletics programs and from which each student-athlete shall receive an equal amount of compensation at the end of each academic year.

The university cost provisions contained in Senate Bill 464 are similar to those introduced by New York State Senator Kevin S. Parker in his bill, the New York Collegiate Athletic Participation Compensation Act. Here, Senator Parker’s legislation seeks to require the following:

  • Each college must establish a sports injury health savings account and a wage fund. These will be funded by each college and university with 15 percent of the revenue each school derives from ticket sales for its athletics programs’ events. Half of such revenue will be deposited into such sports injury health savings account and the other half will be deposited into such wage fund; and,
  • Each college’s sports injury health savings account will be established to provide a student-athlete who suffers a career-ending or serious injury during a game or practice with compensation upon his or her graduation; and,
  • At the conclusion of each school year, each college’s wage fund will be divided evenly and paid to all student-athletes attending such college.

For Virginia’s many universities and student-athletes (and future student-athletes), the variations among the three proposals will certainly create passionate dialogue and debate among Virginia’s state legislators and be something to watch closely in 2020.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor Virginia’s three proposed name, image and likeness legislative proposals as well as the many other pieces of similar pending state legislation and the potential introduction of federal legislation. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Pending State Bills Propose to Limit The Ability of Transgender Student-Athletes to Compete

Several states have introduced legislation to require transgender student-athletes at the elementary and secondary school levels to compete only in their sex assigned at birth, not based on their gender identity.

While more than a third of states allow transgender students to compete on teams based on their gender identity, legislators in several states (including Georgia, Idaho, Missouri, New Hampshire, Tennessee, and Washington) are attempting to end this personal right of choice. Legislators in these states have introduced (or pre-filed proposed legislation for their upcoming state legislative sessions) that would restrict students from being able to compete based on their gender identity. For example,

the proposed Tennessee legislation (House Bill 1572) would require elementary and secondary schools that receive public funding to ensure that students participating in school-sanction sports only compete “based on the athlete’s biological sex as indicated on the athlete’s original birth certificate.”

Any birth certificate that has been revised or amended regarding the athlete’s sex will not be accepted. A violation can result in the loss of public funds from state or local government. Also, a principal or school administrator may be fired and fined up to $10,000 as a civil penalty.

The Tennessee bill’s sponsor, Representative Bruce Griffey, said, “I’m just trying to maintain fairness, I don’t want girls to be at a disadvantage.”

In Washington, Representative Brad Klippert has introduced legislation that would overturn the state’s policy of allowing students to participate in sports “consistent with their gender identity.”

The legislation, aimed at trans-female athletes (MTF), would require school districts to “prohibit male students from competing with and against female students in athletic activities with separate classifications for male and female students if the athletic activity is (a) intended for female students; and (b) an individual competition sport.” A “male student” is defined as a student whose assigned sex at birth was male.

The push for this type of legislation reflects a growing concern that certain transgender protections have resulted in unfair competition in women’s sports. Several legislators suggested that transgender female athletes have natural physical advantages over biological females, including differences in muscle mass, bone strength, lung capacity, and heart size. While bill sponsors have had difficulty finding specific examples to support this position, several referred to a Connecticut state girls indoor track championship where two transgender female high-school students won in dash events.

While competition at the high school level is not covered by specific NCAA legislation, a review of the working model introduced by the NCAA can provide guidance. The NCAA has confronted the fair competition issues with a formal transgender policy. The NCAA policy on participation of transgender student-athletes is as follows:

  • A trans male (FTM) student-athlete who has received a medical exception for treatment with testosterone, for purposes of NCAA and competition may compete on a men’s team, but is no longer eligible to compete on a women’s team without changing that team status to a mixed team. A trans male (FTM) student-athlete who is not taking testosterone related to gender transition may participate on a men’s or women’s team.
  • A trans female (MTF) student-athlete being treated with testosterone suppression medication may continue to compete on a men’s team but may not compete on a women’s team without changing it to a mixed team status until completing one calendar year of testosterone suppression treatment. A trans female (MTF) transgender student-athlete who is not taking hormone treatments related to gender transition may not compete on a women’s team.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor these state bills and the issues relating to the rights of transgender student-athletes to compete in interscholastic competition. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions regarding the status of any of the proposed laws.

USCIS Denials in Extraordinary Ability Category on the Rise

  • Is it a significant achievement to make it onto a national sports team?
  • Would winning a top-ten spot in a European championship constitute an award for excellence?
  • Would being one of a duo who were U.S. junior ice dance champions constitute an internationally recognized prize?

These are questions USCIS has answered in the negative in denying extraordinary ability (EB-1) permanent resident (“green card”) petitions. The rise in these denials, like the steep increase in denials of employment visas, including H-1B and L-1 visas, results from President Donald Trump’s anti-immigration policies affecting legal and illegal immigration.

Please find the rest of this article on our Immigration Blog here.

Federal Legislators Form Working Group To Address Student-Athlete Name, Image and Likeness Rights

In a long awaited, but highly anticipated step, a group of United States Senators has announced the formation of a bipartisan working group to assist with ongoing discussions regarding compensation for student-athletes relating to their name, image and likeness. The working group, whose initial members will include Senators Cory Booker (D-NJ), Chris Murphy (D-Ct), David Perdue (R-GA), Mitt Romney (R-UT) and Marco Rubio (R-FL), will aim to provide an informal, open forum among federal legislators, collegiate partners, athletes and experts who wish to engage with lawmakers in the process.

The federal legislative group has been formed while the NCAA’s internal working group will continue working through April 2020 to gather feedback and refine its initial policy recommendation that will permit students participating in college athletics the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model. The initial policy recommendations from the NCAA’s internal working group on name, image, and likeness issues, headed by Big East Commissioner Val Ackerman and senior college administrator Gene Smith, were based on several months of gathering feedback from various stakeholders, including current and former student-athletes, coaches, presidents, faculty and commissioners across all three NCAA divisions. As part of the NCAA’s working group initiative, each NCAA division has been asked to create any new rules beginning immediately, but no later than January 2021.

NCAA President Mark Emmert expressed his approval of the formation of the federal legislative working group. Emmert stated,

the NCAA, its member schools and conferences are committed to enhancing our rules while providing the best educational and athletic experience for our student-athletes. We know that continuing our modernization of rules will require some level of federal assistance, and we look forward to working with federal legislators as we drive improvements for the next decade.

Since the passing of California Senate Bill 206, legislators from more than 25 additional states have either introduced legislation or announced plans to introduce legislation at the start of their state’s next legislative session shortly after the start of the new year. The numerous state law proposals permitting student-athletes the right to secure compensation for their name, image and likeness rights and the various effective dates for these bills has raised concern about the potential ability of the NCAA and college athletics to maintain some semblance of order. In fact, the NCAA has previously indicated that state laws contradicting its policies might result in athletes or schools being declared ineligible,

Addressing the concerns regarding the complexities that could arise from the potential of numerous state laws pertaining to student-athlete rights, working group member Senator Marco Rubio commented,

Having 50 different state laws for compensating student athletes on their name, image likeness would result in chaos and endless litigation. This bipartisan working group has a tough task ahead of us, but it is clear Congress must address this important issue.

Senator Purdue echoed Senator Rubio’s thoughts, ‘It is important to preserve the collegiate sports experience while promoting equality for students across all 50 states.” Voicing optimism for the new formed federal working group, Senator Perdue added, “this bipartisan working group will provide an informal setting for these discussions and will hopefully produce solutions to prevent any state, school, or student from being at disadvantage.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the various issues arising from this newly formed federal legislator working group and its potential impact to student-athlete marketing rights of their name, image and likeness. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

 

Former College Athlete Sues NCAA, Member Schools for Student-Athlete Pay

Following the NCAA’s recent policy announcement to allow current student-athletes to benefit from the use of their name, likeness and image, a former college athlete has filed a class and collective action complaint against the NCAA and 23 member schools for failing to pay student-athletes.

Former Villanova football player Ralph “Trey” Johnson filed a suit in the Eastern District of Pennsylvania on behalf of himself and similarly situated persons claiming the NCAA and the named colleges and universities violated the Fair Labor Standards Act (FLSA) and state law by not paying their student-athletes.

The 116-page complaint alleges that student-athletes “engaged in athletic work that is unrelated to academics; supervised by full-time, well-paid coaching and training staff; and integral to the billion-dollar Big Business of NCAA sports—are student employees as much as, and arguably more than, fellow students employed in Work Study programs.”

Two federal appeals courts have held that student-athletes are not employees under wage and hour law. In 2016, in Berger v. NCAA, the 7th Circuit broadly held that student-athletes are not employees under the FLSA. In 2019, in Dawson v. NCAA, the 9th Circuit held that the NCAA or PAC-12 Conference were not employers of student-athletes under the FLSA or California state law.

Recognizing this, Donald Remy, NCAA chief operating office and chief legal officer, said,

“[T]his complaint is filed by lawyers who have already sued unsuccessfully on this subject.”

Remy also noted the suit

“ignores previous court rulings that student-athletes are not university employees. The NCAA remains confident that courts will continue to uphold the precedent set by prior decisions.”

Johnson’s complaint, however, relies heavily on a 2018 case that also was brought in the Eastern District of Pennsylvania by another former Villanova football player. In Livers v. NCAA, although the court dismissed Lawrence “Poppy” Livers’ complaint for being outside the two-year statute of limitations, its analysis of the underlying issues may have opened the door for Johnson’s case to proceed.

Johnson emphasizes the Livers court noted “both Berger and Dawson relied heavily on Vanskike v. Peters” to support the rejection of a multi-factor test to evaluate whether an employment relationship exists. 974 F.2d 806 (7th Cir. 1992). The Vanskike court rejected such a multi-factor test in determining whether a prisoner could be considered an employee under the FLSA. That court determined a holistic application of the “economic reality” test was more appropriate, because the Thirteenth Amendment excludes convicted criminals from the prohibition of involuntary servitude, and thus, a multi-factor test would not capture the true nature of the relationship in question.

Although the NCAA has successfully argued that, like in Vanskike, a multi-factor test is not appropriate for evaluating whether a student-athlete is an employee under the FLSA, the Livers court declined to endorse this argument. In fact, the court noted that, although much of its analysis was centered around a holistic application of the “economic realities” test, “this does not foreclose the possibility that an appropriate multi-factor test could be identified for evaluating the question of whether a student-athlete who receives an athletic scholarship is an “employee” for FLSA purposes. The court went on to state that any such test likely would lean on factors used in Donovan v. DialAmerica Merketing, Inc., a 3rd Circuit case distinguishing between employees and independent contractors.

Johnson’s complaint argues that the Livers court recognized “standard FLSA cases are applicable to NCAA sports,” and proposes two tests that could be used, including the 3rd Circuit Donovan test. The complaint also proposes a test used by the 2nd Circuit in determining whether interns are employees under the FLSA.

Significantly, in Berger and Dawson, both courts’ decisions relied heavily on the NCAA’s “long tradition of amateurism in college sports.” In the wake of the NCAA’s unanimous decision to allow student-athletes to benefit from their name, image, and likeness, the amateurism defense may now be open to legal attack. One of Johnson’s lawyers contends that the NCAA is fine with athletes being paid, so long as someone else pays them.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor developments in this case. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

NCAA Board of Governors Approves Policy Permitting College Athletes to Benefit From Use of Name, Image, and Likeness

The NCAA Board of Governors has unanimously approved a policy which will “permit students participating in athletics the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model.”

The policy calls for “flexibility” in order “to provide the best possible experience for college athletes.” It was adopted following “comprehensive recommendations” from the NCAA’s internal working group on name, image, and likeness issues headed by Big East Commissioner Val Ackerman and senior college administrator Gene Smith. According to the statement released by the NCAA, the working group’s recommendations were based on several months of gathering feedback from stakeholders, including current and former student-athletes, coaches, presidents, faculty and commissioners across all three NCAA divisions.

It is interesting to note the NCAA announcement did not refer to the ability of student-athletes to “profit” from these policy changes, but rather for student-athletes to “benefit” from the use of their name, image and likeness.

The statement also indicates that the internal working group will continue to gather feedback and refine its recommendations through April of 2020. Each NCAA division is asked to

“create any new rules beginning immediately, but no later than January 2021.”

The statement does not provide specific details regarding the policy; however, it indicates that changes to NCAA rules could occur “immediately.” Of significant note is that the policy directs each of the NCAA’s three divisions to consider these proposed bylaw and policy changes “for the 21st century.”

In effect, the NCAA is attempting to eliminate the state-by-state legislative issue regarding name, image and likeness rights by requiring each NCAA division to prepare these bylaw updates on a nationwide basis, that would apply equally to all schools in each division, regardless of the school’s specific state location.

To that end, the NCAA issued the following guidelines for modernizing name, image, and likeness rules:

  • Assure student-athletes are treated similarly to non-athlete students unless a compelling reason exists to differentiate.
  • Maintain the priorities of education and the collegiate experience to provide opportunities for student-athlete success.
  • Ensure rules are transparent, focused and enforceable and facilitate fair and balanced competition.
  • Make clear the distinction between collegiate and professional opportunities.
  • Make clear that compensation for athletics performance or participation is impermissible.
  • Reaffirm that student-athletes are students first and not employees of the university.
  • Enhance principles of diversity, inclusion and gender equity.
  • Protect the recruiting environment and prohibit inducements to select, remain at, or transfer to a specific institution.

In reaction of the NCAA’s new policy, NCAA President Mark Emmert commented, “The NCAA is uniquely positioned to modify its rules to ensure fairness and a level playing field for student-athletes. The board’s action creates a path to enhance opportunities for student-athletes while ensuring they compete against students and not professionals.”

Jackson Lewis’ Collegiate and Professional Sorts Practice Group will continue to monitor the various issues arising from the NCAA’s Board of Governors regarding the rights of student-athletes to benefit from the use of their name, image and likeness. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

    

 

National Football Players Association Joins Forces with the National College Players Association in Effort to Market Name, Image and Likeness Rights for Student Athletes

The National Football League Players Association (NFLPA) has announced a partnership with the National College Players Association (NCPA) to jointly explore the marketing and licensing of all college athletes and how they can be paid for the use of their name, image and likeness through the NFLPA’s licensing affiliated entity, REP Worldwide.

Seeking to maximize the value of California’s Fair Pay To Play Act, recently signed into law by California Governor Gavin Newsom, which has empowered California student-athletes to seek financial opportunities relating to the marketing of their name, image and likeness beginning in January 2023, NFLPA Executive Director DeMaurice Smith stated, “We are proud to partner with the NCPA and offer the services of REP Worldwide to offer all athletes the same world class service that NFL players receive. For the first time, a legislature has indicated that these students have rights just like everyone else and we support this continuing movement towards fairness. Regarding the NFLPA’s new partnership with the NCPA, Smith added, the new relationship

“will explore opportunities for merchandise, gaming and other officially licensed products. We will also review how recent developments impact television broadcast revenues in pursuit of fairness.”

Ramogi Huma, former UCLA Bruins linebacker and current NCPA Executive Director, commented as well. “I am grateful that college athletes will finally have representation that cares only about fairness for the athletes.” He continued, “We are on the right side of history and invite the NCAA’s commercial partners to join us. It’s time to embrace a new beginning.”

Despite the announcement of the partnership, the potential relationship between these two entities and college athletes is still unclear.

While representatives of the NFLPA and NCPA continue to express their future role as one of “representation,” college athletes as a group are not viewed as employees and are neither unionized nor legally recognized as a collective group. Neither the National Labor Relations Act nor the Fair Labor Standards Act recognizes student-athletes within their definition of employee.

How and if, the NFLPA, Rep Worldwide and the NCPA can represent all college athletes and serve as their collective voice in exploring group marketing opportunities is a question that remains to be answered.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the various issues arising from the student-athlete marketing rights of their name, image and likeness. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

New Jersey Joins the Growing Number of States Seeking to Create Name, Image and Likeness Rights for Student Athletes in Direct Defiance of Current NCAA Bylaws

While student-athletes and colleges and universities across the country await an anticipated response from the NCAA’s established working group regarding name, image and likeness rights, a growing number of states continue to announce their intention to circumvent current NCAA Bylaws and introduce legislation to provide student-athletes with the opportunity to capitalize on their name, image and likeness. New Jersey has now added their name to ever-growing list of states willing to challenge the NCAA.

New Jersey State Senators Joseph Lagana and Sandra Cunningham have introduced a bill entitled the New Jersey Fair Play Act, which would allow student-athletes in New Jersey to earn compensation for the use of their name, image and likeness.

The proposed legislation, which has yet to be assigned a formal number, is modeled after legislation that has already been signed into law in California by Senator Gavin Newsom and similar bills currently being considered in Florida, Georgia, New York, South Carolina and Minnesota.

Senator Lagana commented, “The restrictions placed on our student-athletes are fundamentally unfair. A lot of people, including many at the NCAA, earn large amounts of money off of the blood, sweat and tears of talented young New Jerseyans.” He added, “As a former college athlete, I…cannot overlook the inequality created when students that excel in other disciplines, such as the arts, are not restricted in seeking endorsements.”

Pursuant to the proposed Lagana-Cunningham legislation, student-athletes in New Jersey would be able to earn money for the use of their name, image or likeness without effecting the terms of their student-athlete scholarships. The bill’s language also states that any four-year institution would be prohibited from joining any athletic association or organization that prevents a student-athlete from earning endorsement compensation.

While the bill does protect the right of student-athletes to market their name, image and likeness for video games and endorsement opportunities for clothing manufacturers and food and beverage companies and allows the use of professional representation services to negotiate those contracts, it does contain some specific restrictions. The current proposal specifically prohibits student-athletes from having their name, image or likeness associated or used in any way in connection with adult entertainment, alcohol, gambling, tobacco and electronic smoking, pharmaceuticals, controlled dangerous substances or firearms.

Commenting on the introduction of her proposed legislation, Senator Cunningham, the co-sponsor of New Jersey’s Fair Play Act, stated, “Universities are making immense profits from their athletic departments and while students receive scholarships, one serious injury can leave them with no scholarship, no way to pay for the remainder of their degree and no real path on how to move forward with their life li or their career.” She added, “The time has come for us to stand shoulder to shoulder with our student-athletes and stand up to the NCAA’s outdates and unfair rules.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this proposed New Jersey legislation as well as other legislation that is either discussed or introduced around the country. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

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