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

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

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

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.

U.S. Women’s National Soccer Team Settles Some Claims in Equal Pay Lawsuit

Players on the U.S. Women’s National Soccer team have settled some of the claims the group made in its Equal Pay Act lawsuit against U.S. Soccer Federation, the national governing body for the sport. The settlement resolves issues related to working conditions that are alleged to be less favorable than those made available or provided to members of the men’s national team.

The settlement does not address the overarching allegations of pay discrimination and unequal pay due to sex, claims that were dismissed in May 2020 by a federal district court judge and which will soon be appealed by the plaintiffs to 9th Circuit Court of Appeals. (The court, in effect, stayed the trial and appeal process due to the COVID-19 pandemic.) The women’s players had sought up to $67 million in alleged back pay.

The settlement resolves issues related to travel and hotel accommodations, playing conditions, and support services. U.S. Soccer and the USWNT Players Association intend to incorporate these changes into their collective bargaining agreement.

The players will play in “top-tier” stadiums and on grass “in nearly all circumstances.” The plaintiffs have argued that poorer playing conditions increase the risk of significant and potentially career-threatening injuries. A team of dedicated physicians, as well as nearly two dozen “operational and technical support service professionals.” will now be assigned to the women’s team pursuant to the terms of the settlement.

U.S. Soccer will also provide the women’s team an equal number of charter flights and a travel budget comparable to that of the men’s team and will assure the players stay in “top-quality hotels.”

The crux of the players’ claims is that the men’s national team players are paid more money than the women’s national team players. Both the men and the women players are paid in accordance with the collective bargaining agreements their respective unions negotiated with U.S. Soccer. The men are paid on a pay-for-play basis, factoring in appearances and performance, with no guaranteed player income. The women’s contract includes guaranteed salaries and other benefits, such as child care and severance.

U.S. Soccer has said it offered the USWNT Players Association a contract similar to that of the men’s, but the union has rejected the offer.

However, the pool of money that would be available to the women’s team – using the same formula as in the men’s contract – would yield lower pay to the women players compared with the men because the men’s revenue pool is filled with distributable funds derived from the men’s FIFA World Cup, which dwarfs the funds provided by the women’s World Cup.

That the union agreed to different compensation terms than the men was the principle reason the lawsuit was dismissed. The Equal Pay Act prohibits men and women from being paid differently “on the basis of sex” with exceptions that include “a differential based on any other factor other than sex.” The women’s collective bargaining agreement can be such a differential.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor and report on the status of this case and the 9th Circuit appeal during the weeks and months ahead. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

National Association of Basketball Coaches Advocates Playing of ‘Black National Anthem’ With ‘Star Spangled Banner’

The National Association of Basketball Coaches (NABC), the national organization of men’s basketball coaches, and its Committee on Racial Reconciliation has forwarded a letter to all of its member coaches encouraging basketball programs to play both “The Star Spangled Banner” and “Lift Every Voice and Sing” prior to games this season.

Craig Robinson, NABC Executive Director, acknowledged “the unique ability of sports to unite and bring us together in ways few other cultural phenomena can.” Robinson stressed that“Lift Every Voice and Sing” has served as an anthem for Black communities for over a century and that the song’s lyrics recognize the nation’s troubled history of race relations and celebrate hopes for a brighter race relations future.

His communication acknowledged the song is recognized as

one of the most cherished of the African American civil rights movement and is often referred to as the Black national anthem.

The letter contained an attachment, referred to as a “handbook,” with a specific explanation of the historical importance of the song and specific suggestions and guidance as to how the song should be presented and integrated as a complement to “The Star Spangled Banner” during pregame activities.

The handbook explained that “Lift Every Voice and Sing” is not being suggested as a replacement to the traditional national anthem but rather to accompany and to be played alongside it.

The handbook explains, “When played alongside the anthem, ‘Lift Every Voice and Sing’ delivers a powerful, unifying message that together acknowledges America’s struggle with equality, celebrates progress, and lays a vision for the future.”

The handbook outlines suggested protocol for integration of “Lift Every Voice and Sing” into pregame protocol for participating student-athletes and coaches, as well as for game officials, and suggested language for a public address announcement.

Robinson concluded his letter with his “hope” that all games played across the country during the upcoming season, from Division I level contests to small town high schools, will adopt the suggested protocol and “powerfully reinforce sports’ unifying message.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the NABC recommendation and its potential acceptance by college conferences and individual schools during the upcoming basketball season. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

 

NCAA Announces “March Madness” Modifications To Address COVID-19 Impact

As the NCAA Men’s Basketball 2020-2021 regular season schedule is about to begin in the midst of escalating coronavirus pandemic spikes and increasing hospitalizations around the country, the NCAA Division I Men’s Basketball Committee announced today the relocation of 13 predetermined preliminary round sites for the 2021 Division I Men’s Basketball Championship to one geographic area. The NCAA Division I Women’s Basketball Committee has also stated that they currently are considering their tournament options, with the potential relocation of that tournament to one site as well.

Seeking to create the most effective way to plan for its March Madness tournament to determine the 2021 National Champion, the NCAA’s Committee concluded that the conducting of the preliminary rounds of the championship at 13 different locations throughout the United States would be extremely difficult to safely conduct as the COVID-19 pandemic continues to surge. Despite cities like Boise, Dallas, Lexington and San Jose already scheduled to host first and second round games from March 18th through the 21st and Denver, Minneapolis, Brooklyn an Memphis on tap to host the Regional contests from March 25th through the 28th, the Committee concluded that all of the games in the championship should be held in a single geographic area to enhance the safe operation for all of the student-athlete participants. Mitch Barnhart, chair of the Division I Men’s Basketball Committee and University of Kentucky athletics director, commented on the decision,

My committee colleagues and I did not come lightly to the difficult decision to relocate the preliminary rounds of the 2021 tournament, as we understand the disappointment 13 communities will feel to miss out on being part of March Madness.

The NCAA announced that since Indianapolis was already slated to host the Men’s Final Four from April 3 through the 5th, it has already begun preliminary talks with the State of Indiana and the city of Indianapolis to host the entire 68 team tournament in multiple venues in and around the metropolitan area during the same previously scheduled dates for the event.

The Committee emphasized the importance of holding the championship in a “manageable geographic area” in order to limit travel and provide a safe competition environment which has the ability to provide adequate practice venues, medical resources and hotel accommodations for all teams and officials within close proximity to one another.

“We have learned so much from monitoring other successful sporting events in the last several months, and it became clear it’s not feasible to manage this complex championship in so many different states with the challenges presented by the pandemic,” said Dan Gavitt, NCAA Senior Vice President of Basketball. “However, we are developing a solid plan to present a safe, responsible and fantastic March Madness tournament unlike any other we’ve experienced.”

In a public statement on behalf of the NCAA, NCAA President concluded, “The Board of Governors and my top priorities are to protect the health and well-being of college athletes while also maintaining their opportunity to compete at the highest level. These principles have guided the decision-making process as we continue to assess how to have a fair and safe championship experience.”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to the COVID-19 pandemic and its impact on collegiate and professional sports. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

 

Ivy League Announces Cancellation of Winter Sports In Continued Commitment to Student-Athlete Safety

Once again, the Ivy League has sent a loud and clear COVID-19 message to the collegiate sports community. After initially delaying the start of the winter sports schedule until January 2021, the Ivy League Counsel of Presidents has voted unanimously to cancel all intercollegiate sports until at least March, becoming the first Division I conference to officially suspend its winter sports schedule in the midst of escalating coronavirus pandemic spikes and increasing hospitalizations in the Northeast and around the country.

In addition, to the postponement of all sports until at least March 1st,  the conference also announced that it will no longer hold in abeyance its previous delay in deciding to allow fall sports to play in the spring by formally canceling fall sports competition during the 2021 spring semester.

The Ivy League announcement regarding winter sports follows its ongoing precautionary pattern of having been the first conference in the country to act in response to the pandemic by canceling its men’s and women’s conference basketball tournaments last March and its fall sports schedule in early July.

Despite broad criticism for overreacting from multiple professional leagues and other college conferences for its preemptive decision in March, within days the Ivy League and its Executive Director Harris were ultimately lauded for their decision to exercise extreme caution to protect their student-athletes. Approximately two days after the Ivy League’s decision, all professional sports leagues were shut down following the COVID-19 diagnosis of NBA player Rudy Gobert and the NCAA was forced to cancel the men’s and women’s NCAA basketball tournaments.

In response to the announcement of the cancellation of the league’s winter sports schedule,

Executive Director Harris commented, “We are heartbroken to be here again. This is definitely not a decision we want to make, but I know it’s the right decision for the Ivy League.”

Harris acknowledged that Ivy League coaches and athletic directors offered various options for conducting a season, including the elimination of overnight road trips and modification to travel meals. Unfortunately, the proposed alternatives were not deemed to be sufficient to diminish to potential risk of COVID-19 exposure to the athletes.

The Ivy Council of Presidents concluded that the risk of transmission of the virus far exceeded the goal of for the Ivy League athletes to compete. In a prepared statement, the Ivy Council of Presidents acknowledged the sacrifice of the League’s student-athletes, their families and coaches for public health purposes and stated, “While these decisions come with great disappointment and frustration, our commitment to the safety and lasting health of our student-athletes and wider communities must remain our highest priority.”

The league also announced that training opportunities and practices for enrolled student-athletes will be permitted, provided they are structured in accordance with each institution’s procedures and applicable state and local regulations. This approach is consistent with the plan implemented by the Ivy League for all sports in the fall 2020 term.

While this announcement may not be followed by similar announcements from other basketball dominant conferences, it will be interesting to see if other conferences once again follow the Ivy League’s lead as the Coronavirus continues to spike across the country.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to the COVID-19 pandemic and its impact on collegiate and professional sports. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

NCAA Takes Additional Steps Toward Ratification Of Name, Image, and Likeness Legislation

The NCAA has taken a further step toward the finalization of specific provisions which would allow student-athletes the opportunity to pursue endorsement opportunities for the use of their name, image and likeness. The NCAA Division I Council has approved an updated draft of proposed student-athlete name, image, and likeness rights (NIL) legislation. This revised proposal, which is still subject to further recommendations and modifications, will be presented for final approval in January 2021. It is expected that any finalized proposal will take effect on or about August 1, 2021.

The Division I Council has indicated that the organization’s Legislative Solutions Group may make additional recommendations to the Division I Council on pre-enrollment, permissible booster involvement, and institutional assistance versus institutional involvement. Additionally, the Council supports breaking the proposed concepts into separate legislative proposals based on topic area in order to vote on each element separately during the January 2021 vote.

While NIL laws have already been passed in five states (California, Colorado, Florida, New Jersey, and Nebraska with more than two dozen states currently considering similar legislation) and bipartisan legislation has already been introduced in Congress, the NCAA’s proposed NIL rule modifications still appear to be more restrictive that the current state laws, including the Florida law which has an effective date of July 1, 2021. In an effort to avoid the impending conflict between the anticipated enactment of an increasing number of state NIL laws and the NCAA’s potential legislative modifications, the NCAA is urging Congress to expeditiously create legislation that would preempt state NIL laws which potentially create an advantage for a group of schools over others in recruiting future student-athletes.

The NCAA Division I Name, Image and Likeness Legislative Solutions Group’s 22-page proposal, “Amateurism-Use of a Student-Athletes Name, Image and Likeness,” details specific changes to current NCAA NIL restrictions. According to the proposal, student-athletes would have the right to use their NIL for compensation as follows:

  • Promote private lessons and business activities and operate their own camps and clinics, as long as they do not use school marks.
  • Profit from endorsing products through commercials and other ventures, as long as they do not use any school marks or reveal the school in which they attend. They are allowed only to refer to “their involvement in intercollegiate athletics generally.”
  • Be compensated for autograph sessions, as long as they do not occur during an institution event or competition and no school marks or apparel is used during the sale of the material.
  • Solicit funds through crowdfunding, such as GoFundMe, for non-profits or charities, catastrophic events, family hardships, and educational experiences, such as internships.
  • Enter deals with agents only for (1) advice on NIL ventures, (2) assistance in contract negotiations, and (3) marketing of NIL ventures. Student-athletes must disclose all NIL ventures, relationships, and contracts with agents to their schools and a third-party administrator to be named.

Despite being described by NCAA Division I Chair M. Grace Calhoun as an “important milestone,” the NCAA proposal makes significant policy changes but still contains numerous restrictions on student-athlete NIL use.

Student-athletes would be prohibited from participating in certain activities, including engaging in commercial activities in conflict with NCAA legislation” (i.e., sports wagering and banned substances) or existing institutional sponsorship arrangements or other school “values.”

Meanwhile, multiple members of Congress have introduced legislation seeking to create specific student-athlete NIL rights as well as law preventing unfair practices in college sports that goes beyond the NIL rights addressed in the NCAA’s Proposal. 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.), has received initial bipartisan support from three Republican and three Democratic representatives co-sponsoring the bill.

The Gonzalez-Cleaver bill follows Republican Senator Marco Rubio’s “The Fairness In Collegiate Athletics Act” (introduced earlier this summer), which would require the NCAA to implement rules that would allow student-athletes to be compensated for their NIL by June 30, 2021, one day before the effective date of the Florida NIL law (which has the earliest effective date of any current NIL state law). In exchange for the mandate to the NCAA, the Rubio bill would provide the NCAA a protective legal shield against legal challenges from any rule changes implemented to allow student-athletes to earn money for endorsement deals and personal appearances.

The key components of the Gonzalez-Cleaver legislation would authorize student-athlete use of representatives to solicit or negotiate endorsement opportunities. The potential endorsements permitted include money-making opportunities that could conflict with existing school sponsorship agreements. The student status of any student-athlete who enters into an endorsement agreement will remain the same and would not make them a school employee.

The Gonzalez-Cleaver bill also would eliminate student-athlete endorsements of companies associated with alcohol, tobacco, or vaping, marijuana, or drug dispensaries or sellers, casinos and gambling facilities, and adult entertainment. Student-athletes also would be prohibited from “wearing any item of clothing or gear with the insignia of any entity during athletic competition or a university sponsored event.”

New Jersey Senator Cory Booker and Connecticut Senator Chris Murphy have also announced plans to introduce a “College Athletes Bill of Rights.” Commenting on the legislation, Senator Booker said, “[I]f federal lawmakers are going to help the NCAA by providing NIL legislation, they should also use the opportunity to enforce rules that improve health and safety standards for college athletes and give them a bigger voice in future decisions.” That bill would guarantee student-athletes monetary compensation, long-term healthcare, lifetime educational scholarships, and more eligibility freedoms as follows:

  • Allow student-athletes to enter group licensing deals and revenue-sharing agreements with athletic associations, conferences, and their respective schools.
  • Allow student-athletes to transfer schools without restriction or penalty.

While the NCAA transfer rule requires student-athletes to miss a year of eligibility when transferring to another program, the transfer rule is expected to be amended in January 2021 to allow players to transfer once without penalty.

  • Require each school to provide detailed annual public reporting of their revenue and expenses.

While the NCAA has taken steps to address the NIL issue, the potential collision course between the potential NCAA legislative modifications and the impact of the Florida law containing broader based NIL rights in July 2021 appears to be unavoidable unless Congress acts.

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

NAIA Grants Name, Image, Likeness Rights to Collegiate Student-Athletes

While the collegiate sports world awaits the NCAA’s final position on the issue of student-athlete name, image, and likeness (NIL) rights, another college athletic governing body has stepped forward and made the initial legislative enactment authorizing student-athletes to profit from the use of their name, image, and likeness.

The National Association of Intercollegiate Athletics (NAIA) has become the nation’s first college sports organization to enact specific NIL rights for its student-athletes.

The NAIA serves as the governing body for more than 77,000 student-athletes who play college sports for 250 smaller school members spread among 21 NAIA conference members throughout the United States.

An additional amendment to existing language in the NAIA Amateur Code, which had been previously expanded to allow student-athlete compensation for NIL rights provided that neither the student’s school nor student-athlete status was referenced, now authorizes a student-athlete to receive compensation for promoting any commercial product, enterprise, or for any public or media appearance. Additionally, it is now permissible for a student-athlete to reference their intercollegiate athletic participation in such promotions or appearances.

Announcing the legislation, NAIA President and CEO Jim Carr proclaimed,

“This is a landmark day for the NAIA, and we are happy to lead the way in providing additional opportunities for our student-athletes.”

Carr further explained, “The time was right for the NAIA to ensure our student-athletes can use their name, image and likeness in the same ways as all other college students.”

While making the formal announcement, the NAIA clarified specific areas of prior concern and noted specific scenarios in which student-athletes can now be compensated. The scenarios included:

  • Individual or team participation in a movie, show, commercial in their sport which identifies the student-athlete’s sport and college and permits the student-athlete to wear their school uniform.
  • Student-athletes can utilize their status as a student-athlete to promote and sell supplements.
  • Student-athletes can be a member of a music group and reference the school in a poster to promote the group.
  • Student-athletes can offer sport lessons to youth for an hourly fee and advertise on social media and flyers, including action shots of the student-athlete in their college uniform.
  • Student-athletes can publish a memoir about their life story and reference their position as a student-athlete and their specific institution.
  • Student-athletes can receive compensation for appearing in a local commercial, even if they reference their status as a student-athlete or their institution.
  • Student-athletes can monetize their influence on social media, with Instagram influencer status or a YouTube channel, even if they reference their status as a student-athlete or their institution.

While the collegiate sports world has watched five states (California, Colorado, Florida, Nebraska, and New Jersey) lead the legislative way for student-athletes with specific state law enactment of NIL legislation and the introduction of multiple proposed federal NIL legislation, the NAIA has taken the first official step to authorize student-athlete NIL rights. While awaiting the next phase of the NCAA’s proposed NIL legislation, with an anticipated January 2021 effective date, the pressure to enact legislation similar to the current state laws and the NAIA’s legislative enactment will continue to build.

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the NAIA new student-athlete NIL rights, the ongoing NIL issues on the federal and state level, as well as the NCAA’s anticipated final NIL rules. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

Bipartisan Name, Image, Likeness Bill Introduced In Congress

Legislation that would protect the rights of student-athletes to receive financial benefits from the commercial use of their name, image, and likeness (NIL), while prohibiting athletic associations, like the NCAA and colleges and universities, from preventing student-athletes from participating in intercollegiate athletics as a result of entering into endorsement contracts has been introduced in the House of Representatives.

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.), has received initial bipartisan support from three Republican and three Democratic representatives co-sponsoring the bill.

The Gonzalez-Cleaver bill follows Republican Senator Marco Rubio’s proposed “The Fairness In Collegiate Athletics Act,” which was introduced earlier this summer. Senator Rubio’s bill would require the National Collegiate Athletic Association (NCAA) to implement rules that would allow student-athletes to be compensated for their NIL by June 30, 2021, one day before the effective date of the Florida NIL law, which has the earliest formal effective date of any current NIL state laws. In exchange for the mandate to the NCAA, the Rubio bill would provide a protective legal shield to prevent the NCAA from being legally challenged as a result of any rule changes they implement to allow student-athletes to earn money for endorsement deals and personal appearances.

In addition to the Rubio legislation, the Gonzalez-Cleaver bill is expected to be joined by another piece of partisan legislation from Senators Cory Booker and Richard Blumenthal. The highly anticipated “College Athletes Bill of Rights” is expected to propose similar NIL rights, as well as additional healthcare coverage and educational benefits for college athletes.

The key components of the Gonzalez-Cleaver legislation would authorize student-athlete use of representatives to solicit or negotiate endorsement opportunities.

The potential endorsements would be able to include money-making opportunities that could conflict with existing school sponsorship agreements.

The student status of any student-athlete who enters into an endorsement agreement will remain the same and would not make them a school employee.

However, specific restrictions in the bill would prevent “boosters” (defined as individuals not related to an athlete or sponsors of school athletic programs who provide substantial financial assistance or services to schools) from providing any funds or things of value as an inducement for a student-athlete to enroll or remain at a school.

The bill also would eliminate student-athlete endorsements of companies associated with alcohol, tobacco, or vaping, marijuana, or drug dispensaries or sellers, casinos and gambling facilities, and adult entertainment.

Student-athletes would also be prohibited from “wearing any item of clothing or gear with the insignia of any entity during athletic competition or a university sponsored event.”

In addition to protecting student-athlete NIL rights, the Gonzalez-Cleaver bill attempts to appease certain concerns raised by NCAA. The bill contains language that would expressly preempt the impact of the laws of states that have already passed NIL legislation (California, Colorado, Florida, Nebraska and New Jersey) and attempt to dissuade other states from proceeding with impending votes on similar NIL laws.

The Federal Trade Commission would be tasked with oversight and enforcement of the NIL bill. Congress will establish and appoint a 13-person Covered Athletic Organization Commission made up of a combination of athletic directors, coaches, former student-athletes, athletic administrators, sports marketing professionals, and individuals with corporate governance experience. The Commission would be responsible during a three-year period to monitor the bill and make recommendations by reporting to Congress on an annual basis.

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 introduction of its anticipated final rules. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

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