UPDATE: Sixth Federal NIL Bill Proposed by Kansas Senator Jerry Moran; Senator Booker Comments on Status of College Athlete Bill of Rights

By Gregg E. Clifton and Nicholas A. Plinio on

Amateur Athletes Protection and Compensation Act.

The Amateur Athletes Protection and Compensation Act of 2021 (Protection Act), the sixth federal proposal governing student-athlete name, image, and likeness (NIL) rights, has been introduced U.S. Senator Jerry Moran (R-KS). Senator Moran’s legislation combines aspects of prior partisan legislation proposed by both Republican and Democratic legislators.

The Protection Act follows portions of Senator Murphy’s (D-CT) recently proposed federal College Athlete Economic Freedom Act, and joins other proposals by Senators Booker (D-NJ) and Blumenthal (D-CT), Senator Wicker (R-MS), Senator Rubio (R-FL), and the bi-partisan bill introduced by Representatives Gonzalez (R-OH) and Cleaver (D-MO.). These federal proposals have followed a wave of state-level NIL legislation, which has already resulted in six states passing NIL laws and twenty nine other states currently considering specific NIL legislation.

Under the terms of Senator Moran’s bill, athletes can sign endorsement deals if the agreements do not violate a school’s code of conduct, and recruits can sign similar endorsement deals if they are not considered recruiting inducements. The bill also grants student-athletes the right to enter a sports draft and retain their eligibility if they do not receive compensation from a professional sports league, team, or agent.

Unlike the more restrictive NIL language contained in Republican Senator Rubio and Senator Wicker’s proposed legislation, Senator Moran’s bill follows more liberal democratic proposals that expand medical coverage, lifetime scholarships for former athletes and grant athletes the ability to transfer at least once without penalty. The bill would require schools to cover student-athlete’s medical expenses upon the expiration of their athletic eligibility for either two years or four years depending upon the school’s athletic department revenue. It also compels schools to honor scholarships indefinitely until the student-athlete can complete their undergraduate degree.

Senator Moran’s bill also preempts varying state NIL laws and protects the NCAA from liability from former athletes retroactively seeking compensation. However, it does not grant the NCAA antitrust protection from legal entanglements tied to NIL. Finally,

the bill is careful to ensure student athletes are not considered “employees” of their institution, an important point for the NCAA as it seeks to preserve its amateurism model and avoid any potential that student-athletes could unionize.

The bill also establishes the Amateur Intercollegiate Athletics Corporation (AIAC) to create and enforce rules related to NIL, while also creating a formal certification process for agents. AIAC members would include college athletes, athletic administrators, and experts in the college sports field. Five of the fifteen member AIAC board of directors would have to be current or former college athletes.

Senator Moran commented on his proposed legislation, “The Amateur Athletes Protection and Compensation Act would create a national standard of guidelines to make certain student athletes can benefit from the use of their name, image and likeness without hurting their eligibility to compete as a student athlete.”

Senator Booker comments on status of the College Athlete Bill of Rights legislation

Senator Corey Booker (D-NJ) recently commented on the status of federal NIL legislation. He explained that federal NIL bills creating a uniform national framework for student-athlete NIL rights have added “leverage” as the NCAA and its member institutions face the first real threat to their revenue model with Florida’s NIL bill set to take effect on July 1, 2021. Senator Booker commented, “Now we have leverage because (colleges) are facing a threat to their revenue model. It gives me a chance in my position in the Senate, along with a lot of great Senate partners, to say we are not going to settle these issues unless you make a commitment to the health and safety of our athletes.”

Senator Booker also commented,

“Don’t underestimate our ability to take all the time that we have until the final hours of a deadline.”

Senator Booker believes Congress won’t start moving on a bill until the spring or summer given the nation’s focus on vaccinations and the economy. The expectation is, as with many federal bills, that things will heat up as the deadline nears.

Senator Booker also acknowledged that one of the most controversial items in his bill, a revenue sharing provision which provides student athletes with the opportunity to share in university sport generated revenue may be difficult to secure. Instead, Senator Booker believes Congress will be more apt to approve an expansion of scholarship value and provisions focused on student-athlete health and safety. In fact, Senator Booker himself stated that he will not let “money issues” be settled until issues surrounding student-athlete health, safety, and education are addressed.

Jackson Lewis’ Sports Industry Group will continue to monitor the progress of state and federal name, image, and likeness bills, related developments, and the potential impact on college sports. Please feel free to reach out to any member of the Group with questions.

Senator Murphy Introduces Additional Federal Name, Image, and Likeness Legislation

By Gregg E. Clifton and Nicholas A. Plinio on

An additional federal legislative proposal regarding college athlete name, image, and likeness (NIL) rights has been introduced on Capitol Hill. The Bill, known as the College Athlete Economic Freedom Act (“Freedom Act”), is authored by Senator Chris Murphy (D-Conn.) a leading advocate and author on college athlete rights and U.S. Representative Lori Trahan (D-Mass.), a former NCAA Division I athlete at Georgetown University. The proposed legislation will protect the name, image and likeness rights of current collegiate student-athletes and become the first proposed federal legislation to also provide rights to prospective collegiate student-athletes.

The Bill adds to the ever-growing number of federal NIL legislative proposals, joining the College Athlete Bill of Rights proposed by Senators Booker (D-NJ) and Blumenthal (D-Conn), the Collegiate Athlete and Compensation Rights Act introduced by Senator Wicker (R-Miss), the Fairness in Collegiate Athletics Act presented by Senator Rubio (R-Fla), and the bi-partisan Student Athlete Level Playing Field Act introduced by Representatives Gonzalez (R-Ohio) and Cleaver (D-Mo).These federal proposals have followed a wave of state-level NIL legislation, which has already resulted in six states passing NIL laws (California, Florida, Nebraska, Colorado, New Jersey and Michigan).

While not as expansive as the College Athlete Bill of Rights, the most recent federal proposal, the Freedom Act provides substantial rights to NCAA student-athletes, including the right to financially benefit from the commercial use of their name, image, and likeness and the right to use attorneys and agents to negotiate NIL opportunities. The Freedom Act also guarantees that these financial opportunities can be pursued and secured without affecting the student-athletes’ ability to continue their collegiate careers and scholarship eligibility.

Commenting on the proposed legislation, Representative Trahan stated, “As leaders at the NCAA finally come to grips with the need for change, it’s important that Congress enact reforms to establish and protect student-athletes’ right to be compensated for the use of their name, image, likeness, or athletic association.”

One of the distinct highlights of the Freedom Act authorizes student-athletes to secure opportunities as individuals or to work together to secure group licensing rights.

This authorizes student-athletes to coordinate group efforts to negotiate for the use of their NIL rights to secure and share revenue from the lucrative video game and apparel marketplaces, without restrictions from the NCAA or its conferences or member institutions.

The Freedom Act is also free from anti-trust protections highly sought by the NCAA. Unlike Senator Wicker’s bill, which proposes broad anti-trust protections insulating the NCAA from liability, the Freedom Act provides penalties if the NCAA, a conference, or member institution denies an athlete the right to market his or her name, image, or likeness. Further, the Freedom Act grants a specific private right of action to impose penalties against violators who engage in unfair or deceptive practices in violation of the Act.

Commenting on his bill, Senator Murphy stated,

“It’s simple: this is about restoring athletes’ ownership over the use of their own names and likeness. They own their brand, not their school or the NCAA.”

The Freedom Act also leaves the door open for student-athletes to engage in a form of collective negotiation. While not specifically declaring student-athletes as “employees” and authorizing their ability to formally unionize under the National Labor Relations Act, the Freedom Act authorizes student-athletes to join together and engage in collective action, which would not require student-athletes to hold “employee” or “union” status, but would allow a “collective representative” to represent student-athletes as a group.

Finally, the Freedom Act grants the NCAA at least one of the items on its list by preempting all state laws governing NIL. As such, the Bill would create a uniform, national framework for NIL usage and compensation rights.

Jackson Lewis’ Sports Industry Group will continue to monitor the progress of this bill and related legislation and their potential impact on college sports. Please feel free to reach out to any member of the Group with questions.

Will Acting General Counsel Ohr’s Appointment Lead To NCAA Athletes Becoming Eligible To Unionize?

By JaVon A. Payton and Gregg E. Clifton on

President Joe Biden has named Peter Sung Ohr to serve as Acting General Counsel of the National Labor Relations Board (NLRB or Board). Ohr has served as the Regional Director of the NLRB Chicago office for nearly a decade.

While the Regional Director, Ohr is best remembered in the world of collegiate sports for his 2014 landmark decision finding scholarship football players at Northwestern University to be “employees” under the National Labor Relations Act (NLRA or Act), and thus eligible for union membership.

Ohr concluded the amateur scholarship-players performed services under the control of, and for the benefit of, their “employer” (Northwestern University) and the value of the football scholarship was compensation.

As a result,

Ohr ruled “all grant-in-aid scholarship players for the Employer’s football team who have not exhausted their playing eligibility are ‘employees’ under the National Labor Relations Act.”

Northwestern appealed Regional Director Ohr’s ruling. The election was held, but the ballots were impounded and never counted. The five-member NLRB unanimously rejected Ohr’s finding and ended the unionization effort. Northwestern University, 362 NLRB 1350 (2015).

The Board declined to assert jurisdiction of the Act over the players, but avoided the ultimate question of whether the college football players were “employees” under the law.

The Board dismissed the case; the ballots were never counted.

The Board concluded that allowing the football players to unionize could lead to competitive imbalance by creating different standards at schools regarding terms of negotiated compensation and mandatory practice requirements.

The Board’s dismissal of the case left open the “employee” status of college football players (and collegiate athletes in general). On January 31, 2017, Richard Griffin, Jr., NLRB General Counsel and President Barack Obama appointee, issued a memorandum clarifying his position on the employee status of scholarship football players. Griffin contended that scholarship football players at Northwestern were employees and opined that other student-athletes could be considered employees.

The NLRB General Counsel is the Board’s top lawyer and acts as “prosecutor” for the NLRB. General Counsel opinions are not the law. General Counsel Griffin’s position did not last long, as he was replaced in due course by Peter Robb, a President Donald Trump appointee. In December 2017, Robb expressly rescinded the Griffin memorandum.

Has the question come full circle?

With Ohr being named Acting NLRB General Counsel, will he reinstate Griffin’s 2017 memo in an effort to confirm his Northwestern ruling?

It seems likely that advocates of this position will be encouraged by Ohr’s appointment. We expect an increase in union representation petitions for student-athletes, not just in football, but also other Division I scholarship sports such as basketball, baseball, soccer, and hockey. Additionally, if Ohr reverts back to GC-17-01, expect an increase in unfair labor practice charges from student-athletes claiming colleges, including their coaching staffs, have infringed upon their protected concerted activity rights under the Act.

In light of Ohr’s appointment at a time when numerous legal issues relating to name, image, and likeness rights for student-athletes and antitrust issues surround the NCAA and college sports, the potential of employee status for scholarship athletes is significant.

While President Biden acted quickly to fire General Counsel Robb and appoint Ohr as his personal selection to serve as Acting General Counsel, one open question is whether Ohr will assert his authority while serving as the Acting General Counsel to repeat his landmark regional decision on a national level.

Jackson Lewis’ Labor Relations Practice and Collegiate and Professional Sports Industry Groups will continue to monitor Acting General Counsel Ohr and any actions he takes while serving in this role. Please feel free to reach out to any to the Jackson Lewis attorneys with whom you work for more information.

UPDATE: NCAA President Recommends Delay In Name, Image and Likeness Vote

By Gregg E. Clifton on

Following receipt of a letter from the United State Department of Justice-Antitrust Division expressing concern about the NCAA’s anticipated vote, NCAA President Mark Emmert has “strongly recommended” to his membership that the NCAA vote currently scheduled for Monday to potentially ratify name, image and likeness (NIL) rights for collegiate student-athletes be delayed.

The much anticipated NIL NCAA legislative vote, expected to be successful and authorize student-athletes to benefit from the commercial use of their name, image and likeness in coordination with the start of the 2021-22 school year, has been the subject of extensive discussion and deliberation throughout most of 2020.

It has been reported that the letter to NCAA President Emmert expressed concern regarding the NCAA’s policies pertaining to collegiate athlete transfers and NIL rules. The Justice Department informed the NCAA that it has been monitoring the NCAA’s ongoing efforts to review and revise the rules in both areas. It is expected that President Emmert’s recommended voting delay will be supported by NCAA membership and further dialogue between NCAA leadership and the Department of Justice will be scheduled and commence in the near future.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the ongoing legal issues relating to NCAA’s effort to pass NIL legislation, as well as continued NIL activity on the federal and state level. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

UPDATE: Michigan Joins Growing Number of States Granting Name, Image, Likeness Rights to Collegiate Student-Athletes

By Gregg E. Clifton on

Michigan Governor Gretchen Whitmer’s signature on House Bill 5217 and House Bill 5218 will allow Michigan student-athletes to earn financial compensation from the use of their name, image, and likeness and authorize the hiring and use of attorneys and agents without affecting student-athlete scholarship eligibility.

Michigan now joins California, Florida, New Jersey Colorado, and Nebraska as the sixth state to pass a law protecting the rights of student-athletes to be paid for the commercial use of their name, image, and likeness rights. As with every state name, image and likeness law that has been enacted to date, except the Florida law which will become effective on July 1, 2021, the Michigan law will also have a significantly delayed effective date. The Michigan law will not become effective until December 31, 2022.

Senator Whitmer commented on the new law, “For years we have all enjoyed the incredible talent of young athletes across the state. This legislation will change the lives of young men and women for years to come.” She concluded, “I am hopeful that the NCAA will set a national standard so that all players across the country are afforded the same opportunities.”

Sponsored by State Representative Brandt Iden, a former college tennis player at Kalamazoo College,

House Bill 5217 specifically prohibits post-secondary educational institutions as well as any athletic association, including the NCAA, from enforcing any rules that limit or prohibit student-athletes from profiting from endorsement or promotional agreements.

In addition, the bill protects student-athletes and their ability to play intercollegiate sports and continue to earn athletic scholarships while earning fees for the use of their name, image and likeness.

House Bill 5218, sponsored by State Representative Joe Tate, a former offensive lineman at Michigan State, and signed by Governor Whitmer along with House Bill 5217, specifically repeals a section of the Michigan penal law which prohibits sports agents from inducing student-athletes from entering into contracts while they still have remaining eligibility to participate in college athletics.

While granting the student-athletes the right to profit from the use of their name, image, and likeness and to hire agents to assist in the identification and negotiation of these endorsement opportunities, the Michigan law places certain limitations and obligations upon student-athletes. Prior to entering into any endorsement agreement, the student-athlete must disclose the proposed opportunity to a university-designated official at least seven (7) days prior to committing to the opportunity or contract.

In addition, student-athlete endorsers will be prohibited from entering into an apparel contract and earning compensation if that contract or promotional relationship would be in conflict with any provision of their post-secondary school’s existing apparel contract.

One other limitation placed upon Michigan student-athletes restricts the use of the name, trademarks, service marks, logos, symbols, or other intellectual property of their university in conjunction with the student-athletes use of their name, image or likeness.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the ongoing name, image, and likeness issues on the federal and state level, as well as the NCAA’s anticipated passing of final rules on name, and likeness later this month. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Major League Soccer To Exercise Force Majeure Clause To Reopen Negotiations With Its Players To Address COVID-19 Financial Realities

By Gregg E. Clifton and Ryan C. Chapoteau on

Major League Soccer (MLS) has informed the MLS Players Association that it intends to exercise the force majeure clause that was recently added to the parties’ collective bargaining agreement (CBA) to negotiate additional contract modifications in good faith for 30 days. If a new agreement is not reached during the 30 day period, the league will be permitted to consider terminating the current agreement and initiating a lockout of its players.

Following the league’s notification to the MLS Players Association, the union responded by strongly criticizing the league’s decision to exercise the force majeure clause. Echoing MLS Players Association Executive Director Bob Fosse’s statement from earlier this month that the league’s decision to exercise the force majeure clause “would be a mistake,” the union issued the following strongly word statement:

After a 2020 season of extreme sacrifice, immeasurable risk to personal health, and a remarkable league-wide effort to successfully return to play, this tone-deaf action by the league discredits the previous sacrifices made by players and the enormous challenges they overcame in 2020.

MLS and its players association had reached an agreement in principle on the terms of a new collective bargaining agreement on January 31, 2020. However, the five year agreement which was negotiated between the parties and scheduled to run through the 2025 season was never ratified as a result of the COVID-19 pandemic.

Lacking formal ratification, MLS was able to reach agreement on a renegotiated CBA with the MLS Players Association in June. The renegotiated agreement included substantial economic concessions from the union following a near three month COVID-19 delay to the start of the 2020 season. While the agreement that was originally negotiated between the parties included more liberal free agency rights for the league’s players and drastic increases in minimum salary levels for veteran players, the modified CBA delayed the effective date of those modifications.

According to Executive Director Fosse, the modified CBA provided player economic concessions in excess of $100 million, including a 5% reduction in player wages, in addition to a $5 million cap on performance and individual bonuses.

The alterations to the CBA also involved the introduction for the first time of a force majeure clause, which allowed MLS to opt out of the revised agreement in the event of a catastrophic event, such as the continuation of the pandemic or its reoccurrence.

While MLS reportedly attempted to negotiate a force majeure escape provision based upon specific attendance numbers in the event of a second wave of COVID-19, the players refused to agree to any type of attendance language in the clause. Rather, the final version, agreed upon by the parties, allowed the league to potentially opt out of  the contract with 30 days’ notice if an event made the CBA economically unfeasible.

According to published reports, the force majeure clause specifically authorizes MLS to terminate the CBA with 30 days’ notice “if an event or condition makes it impossible for the league to perform its obligations under the CBA, frustrates the underlying purpose of the CBA or makes the CBA economically impracticable.”

The league now seeks to utilize the force majeure clause to conduct further negotiations with its players union and to seek additional concessions to lower costs as the financial realities of the pandemic continue to impact the league. While projected financial losses for the 2021 season have not been released, MLS Commissioner Don Garber has reported that MLS lost nearly $1 billion in revenue in 2020.

While the parties begin plans to initiate another round of negotiations for the third time in less than a year, the ongoing economic impact of COVID-19 and the anticipated restrictions on attendance at sporting events, such as professional soccer, will continue to have a drastic financial impact on MLS and other professional sports leagues well into 2021.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the economic impact of COVID-19 throughout professional and collegiate sports. We will also closely follow the ongoing MLS collective bargaining issues arising from the league’s exercising of the force majeure clause in the CBA. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

 

The Proposed “College Athletes Bill of Rights” Joins Growing Number Of Federal Bills On Student-Athlete Rights

By Doriyon C. Glass and Gregg E. Clifton on

Shortly after the Supreme Court granted certiorari to consider the Ninth Circuit’s ruling that the NCAA violated federal anti-trust laws by illegally limiting the value of athletic scholarships, new federal legislation has been introduced that could drastically change the world of college athletics and drastically limit the NCAA’s current authoritative stronghold on student-athletes.

Senators Corey Booker (NJ) and Richard Blumenthal (CT) have formally introduced the “College Athletes Bill of Rights.”

In August, they announced their intention to draft this legislation and foreshadowed its anticipated framework, which was endorsed by several other senators, including Vice President-elect Kamala Harris. The proposed 61 page legislation joins an ever expanding number of proposed federal bills regarding college student-athlete name image and likeness rights (NIL).

Similar to other recently introduced college athlete federal legislation proposals, the Booker-Blumenthal bill seeks to enact NIL rights for student-athletes, including the ability to market themselves individually and as a group to potentially share revenue generated from the lucrative video game marketplace.

The bill also bars schools from interfering with these NIL rights by prohibiting schools from preventing athletes from wearing the shoes of their choice during mandatory team activities, which may open the door endorsement deals in conflict with school contracts. However, the broad based language contained in the bill goes well beyond NIL rights and includes provisions that could change college athletics forever. Specifically, Booker and Blumenthal have proposed that student-athletes receive direct money from the athletic revenue they help to generate for their schools.

Commenting on his bill, Senator Booker stated,

t]he NCAA has failed generations of young men and women even when it comes to their most basic responsibility—keeping the athletes under their charge healthy and safe.”

Accordingly, the bill seeks to establish a nine-member “Commission on College Athletics,” appointed by the President and including at least five former college athletes with legal expertise, that would take a majority of the responsibility of overseeing college athletics away from the NCAA. The commission will regulate athlete endorsement contracts, certify athlete agents, monitor Title IX compliance, and establish health, wellness and safety standards for college athletes. It would also be responsible for enforcing rules laid out in the law and given subpoena power to investigate violations, along with the authority to impose penalties against institutions, conferences, and the NCAA. These penalties may range from financial penalties in excess of $10 million to the suspension of officials from working at a school or in college sports at all.

In addition to impacting the NCAA, the bill would have a significant impact on universities and their athletic departments. The Bill of Rights is the most comprehensive proposal to overhaul of college sports, addressing not just the economic rights of athletes, but their health and safety and educational opportunities.The bill’s sweeping provisions would provide the following:

  • Schools would be required to share the profit from revenue generating sports with the athletes who play those sports, after deducting the cost of scholarships
  • Student-athletes would be guaranteed a scholarship for as many years as it takes the student-athlete to obtain an undergraduate degree
  • A medical trust fund that would provide broad healthcare coverage for student athletes and be accessible to them up to five years following the end of their athletic eligibility
  • A wide range of health and safety guidelines set by the Centers for Disease Control and Prevention
  • A requirement that athletic trainers, team medical personnel, academic advisors and tutors operate and provide services to student athletes “independently from the athletic department”
  • A ban against coaches and staff influencing academic decisions like the selection of academic majors and courses
  • A prohibition against schools imposing restrictions on student athletes’ speech beyond those imposed on other students
  • The elimination of restrictions and penalties related to student-athletes for transferring from one institution to another or breaking a national letter of intent
  • The ability for student-athletes to enter a professional draft and return to college athletics, so long as they do not get paid by a professional team and inform the school of their return within seven days after the completion of that draft
  • A requirement that athletic department annually disclose revenues and expenditures, including department personnel salaries
  • A requirement that a school cannot cut a team “unless all other options for reducing the expenses of the athletic program, including reducing coach salaries and administrative and facility expenses, are not feasible”
  • A requirement that schools have academic credit courses related to financial literacy and life skills consistent with the school’s guidelines

Although other year-end spending bills and COVID-19 relief measures are expected to take precedence in Congress during the final days of the year, it is expected that this bill along with other college athlete-related legislation will likely be reintroduced in January when the new session of Congress commences.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the progress of this bill and related legislation and their potential impact on college sports. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

Supreme Court Grants Certiorari To Consider NCAA’s Request To Review Ninth Circuit Anti-Trust Ruling

By Gregg E. Clifton and John G. Long on

While the legal focus on college athletics has been on the impending expansion of name, image, and likeness rights for NCAA student athletes, prompted in part by State and Federal legislative proposals, the Supreme Court has shifted that focus to the courts after agreeing to intercede and rule on what will prove to be a landmark sports law decision.

The United States Supreme Court granted certiorari and accepted the petition filed by the NCAA to review the decision of the U.S. Court of Appeals for the Ninth Circuit, which affirmed U.S. District Court Judge Claudia Wilken’s decision in Alston v. NCAA. The Ninth Circuit concluded in May that the NCAA violated federal anti-trust laws by illegally limiting the value of athletic scholarships. The NCAA argued that Supreme Court intervention is necessary to correct the Ninth Circuit’s improper application of federal antitrust law. The oral argument, which should take place in March or April of 2021, will review the Ninth Circuit’s decision and in effect determine whether it is legal for the NCAA and its individual school members to limit grants-in-aid to tuition, fees, room, board and books up to the full value and cost of attending the school.

The NCAA has long maintained that anti-trust laws do not prohibit the association and its member schools from maintaining limitations on student-athletes’ ability to be compensated for their athletic performance.

At issue is whether the NCAA’s rules which limit compensation to scholarships is a violation of federal anti-trust law.

While the court has found the NCAA to be in violation of federal anti-trust law, the remedy provided by the Ninth Circuit fell short of what the plaintiffs in Alston v. NCAA sought. The Ninth Circuit authorized unlimited compensation to student-athletes for “educationally related” activities, but it failed to create the open market system which would have allowed high school student-athletes to seek unlimited financial compensation from the “highest bidder” for their services as a collegiate athlete.

According to the remedy imposed by the Ninth Circuit, schools are permitted to offer student-athletes the opportunity to be reimbursed for expenses pertaining to educationally related items such “computers, science equipment, musical instruments and other tangible items not included in the cost of attendance calculation but nonetheless related to the pursuit of academic studies.” Additionally, the Ninth Circuit’s ruling also permits institutions to awards scholarships to student-athletes so that they may complete their undergraduate or graduate degrees after their NCAA eligibility expires.

While some have argued that the NCAA should be pleased with the limited remedy imposed by Judge Wilken and confirmed by the Ninth Circuit,

the NCAA believes that the Supreme Court’s 1984 decision in NCAA v. Board of Regents should be used as the guidepost for its ability to limit compensation to student-athletes.

Although the Ninth Circuit rejected the ideals espoused by the Court as non-binding dicta, the NCAA will argue that Justice John Paul Stevens’s acknowledgment in his majority opinion that “athletes must not be paid” supports the continued Supreme Court “latitude” toward the NCAA’s unique amateurism model.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the progress of this landmark case and its potential impact on college sports. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Federal Name, Image, and Likeness Options Increase With New Senate Bill Proposal

By Gregg E. Clifton on

As additional states move closer to joining the five states (California, Florida, New Jersey, Colorado and Nebraska) which have already enacted legislation granting name, image and likeness (NIL) rights to student-athletes and the NCAA moves closer to its anticipated January vote NIL rights, the number of proposed federal NIL’s bills continues to grow as well.

Senator Roger Wicker (R-Miss.), the current chair of the Senate Commerce, Science and Transportation Committee, has joined several other federal legislators by introducing a NIL bill.

While Senator Wicker’s “Collegiate Athlete and Compensatory Rights Act” would parallel other legislative efforts by permitting college athletes to earn compensation through commercial and endorsements deals, it follows fellow Republican Senator Marco Rubio’s proposed legislation by offering the NCAA the anti-trust protection that it seeks in any potential federal NIL legislation.

Commenting on his legislation, Senator Wicker stated, “A nationwide framework governing student athlete name, image, and likeness compensation is necessary to preserve competition, protect student athletes, and maintain the academic integrity of collegiate institutions. My legislation would achieve this standard, and I am eager to see it advance.”

Senator Wicker’s bill would join current NIL proposals,  the “Student Athlete Level Playing Field Act,” co-introduced by Representative Anthony Gonzalez (R-Ohio), a former Ohio State University and NFL player, and Representative Emanuel Cleaver (D-Mo.) and Republican Senator Marco Rubio’s “The Fairness In Collegiate Athletics Act.” However, as chairman of the Senate Commerce Committee, Senator Wicker may have a significant impact on any federal NIL legislation as it is assumed that any potential NIL bill will need to pass through his committee before it could ever become law.

In addition to the Rubio legislation and the Gonzalez-Cleaver bill, Senator Wicker’s bill is expected to be joined by long anticipated partisan NIL legislation from Democratic Senators Cory Booker and Richard Blumenthal. The “College Athletes Bill of Rights” is expected to propose similar NIL rights, as well as additional healthcare coverage and educational benefits for college athletes while directly opposing Senator Wicker’s bill by refusing to provide any type of anti-trust protection for the NCAA.

According to Senator Wicker, the highlights of his Collegiate Athlete and Compensatory Rights Act proposal, which would preempt all state NIL laws, would:

  • Permit student athletes to earn compensation for the use of their name, image, or likeness, while restricting student-athletes from entering endorsement deals with several companies, including those associated with alcohol, tobacco, gambling or drugs.
  • Provide a mechanism for schools to protect existing agreements by preventing student-athletes from entering into agreements that conflict with institutional agreements, unless expressly waived;
  • Protect student athletes and their families from deceptive business practices or exploitation from unscrupulous actors;
  • Provide educational resources to student athletes regarding earning compensation for the use of their NIL;
  • Preserve amateurism by prohibiting institutions from classifying student athletes as employees and prohibiting boosters from directly or indirectly paying student athletes and their families for the use of their NIL;
  • Prohibit third parties from entering into NIL agreements or offering NIL agreements to a student athlete prior to enrollment at an institution;
  • Authorize the Federal Trade Commission (FTC) to select a private, independent, and nonprofit entity to be responsible for developing and administering NIL rules for student athletes, institutions, associations, certified sports agents, and others operating within the college sports ecosystem;
  • Create a uniform, national framework for student athletes to be compensated for the commercial use of their NIL.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the ongoing name, image, and likeness issues on the federal and state level, as well as the NCAA’s upcoming vote on its of anticipated final NIL rules. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

California Senators To Introduce Supplement To SB 206 In Advance Of NCAA’s January Name, Image, and Likeness Vote

By Gregg E. Clifton on

California State Senators Nancy Skinner and Steven Bradford, the initial drafters of the historic California state legislation which granted student-athletes the legal right to seek remuneration for their name, image and likeness rights, plan to introduce new state legislation to bolster Senate Bill 206 (SB206).

Although the specific language of the new bill has yet to be introduced, Senator Skinner announced that the language in the new co-sponsored bill will be aimed at ensuring full protection for college athletes’ rights. It would also move up the effective implementation date of SB 206 to no later than January 1, 2022 or to an earlier date, which would coincide with the effective date of any NCAA NIL rule changes.

As a result, if the NCAA’s anticipated effective date for implementation of NIL rules remains August 1, 2021 following their anticipated January 2021 vote, the California law would also become effective on August 1, 2021.

SB 206 won unanimous bipartisan approval in the California legislature (112-0). It made California the first state to legislate the right of college student-athletes to earn compensation from their name, image, and likeness (NIL) when Senator Gavin Newsom signed the bill into law in September 2019. The law authorizes student-athletes to earn income from endorsement and sponsorship deals and further authorizes college athletes to operate a business or take jobs as a coach or instructor.

Of equal importance, the law also specifically prohibits California public postsecondary educational institutions, athletic associations, conferences, or any other organization with authority over intercollegiate athletics from affecting a student athlete’s scholarship or athletic eligibility to participate in college sports for earning compensation in connection with the use of the student athlete’s name, image, or likeness.

Commenting on her new proposed legislation, Senator Skinner stated,

“It’s good that the NCAA has followed California’s lead, but their proposed rules changes come up short. The NCAA doesn’t appear willing to give student athletes the autonomy and full range of benefits that California law does. This new bill will ensure that California athletes are not unfairly and unnecessarily restricted.”

The bill’s co-sponsor Senator Bradford commented on the new bill as well, “preventing students from seeking compensation for their likeness while you profit off it yourself is akin to institutionalized slavery.”

While the NCAA has offered drastic changes with regard to student-athlete NIL rights, the current proposal does not provide the same extensive rights to student-athletes as the California law. Specifically, the NCAA’s current proposal provides schools individual discretion to prevent athletes from entering into endorsement agreements that are deemed to conflict with existing school sponsorship arrangements. While the California law does contain certain limitations, it does not empower each school to enact broad based rules automatically preventing student-athletes from entering into potentially conflicting agreements with school sponsorship deals.

In summary, the new legislation is expected to add several key elements to California’s existing law, including:

  • the move of California’s effective date for NIL rights;
  • the addition of the right to earn compensation from what is known as “athletic reputation,” which ensures that a student athlete could identify the name of their college or university in endorsements and advertisements received; and,
  • the addition of specific protections should the NCAA challenge SB 206 in court or if a California school denies college athletes their rights.

The new bill is also expected to include safeguards to ensure that college athletes are not denied the same basic rights afforded to all other college students, except when it comes to recruitment. This proposed change would also conflict with current NCAA bylaws and anticipated NCAA NIL rules.

Senator Skinner further commented, “The struggle for equality and fairness for student athletes has been underway for decades. California can be proud that SB 206 was the legal kickstart to that movement, prompting states across the country to finally say, ‘no,’ to the exploitation of college athletes,”

Senator Skinner concluded, “This new bill will ensure that California’s achievement is fully protected.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor this new proposed California legislation once it is formally introduced. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

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