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

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

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

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

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

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

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

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

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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.