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.

Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.