Beginning July 1, 2021, Alabama, Florida, Georgia, Mississippi and New Mexico have laws that are set to take effect which will allow NCAA student athletes in those states to profit from their name, image, or likeness. The NCAA shelved discussions on the topic back in January after antitrust concerns were raised. Since then, NCAA President Mark Emmert and the NCAA have been largely silent on the issue until an interview appearing in Sunday’s New York Times. In the interview, Emmert indicated that he would be recommending that the NCAA’s board members approve new rules on name, image and likeness “before, or as close to, July 1.” This represents a change in Emmert’s position, since he previously called for Congress to create a uniform set of rules and indicated that the NCAA would not act until those rules were in place. Many commissioners and NCAA members are asking Congress to step in to establish a single set of rules for all members to operate under.
The approval by the NCAA of such rules would mark a sudden and drastic change in the world of college athletics. While details have yet to be developed, prior plans and proposals give us an idea of how this is likely to work. Student athletes will likely be able to receive payment for the use by private companies of their name, image and likeness. Additionally, student athletes might be able to earn money through social media, where some have massive followings. Several years ago, University of Central Florida football player Donald De La Haye had to choose between football and YouTube, where he had a large number of followers and received a share of his videos’ advertising revenue. Unfortunately for him, he was subsequently deemed ineligible, and his scholarship was canceled.
The current proposal would give colleges and universities the power to block potential opportunities for student athletes if they conflict with “existing institutional sponsorship arrangements.” According to the New York Times, other possible restrictions include bans on promoting sports betting or hiring agents “to secure an opportunity as a professional athlete.” Also in play is the NCAA’s pending appeal before the United States Supreme Court, testing whether the NCAA’s limits on compensation for student athletes violate the nation’s antitrust laws.
The new NCAA rules will still not fully resolve all issues, as the laws proposed by the various states are not consistent. For instance, in Georgia, players could be compelled to share a portion of their income with other athletes. That provision is unique to the Georgia statute. While proposals have been discussed on Capitol Hill, a federal bill does not appear imminent. Regardless, it appears the NCAA intends to move forward in short order to keep the playing field as level as possible.
This could mean that businesses may very shortly be able to offer student athletes business opportunities. Both student athletes and universities will have to prepare to address those opportunities and to ensure any necessary compliance.
Hancock Estabrook, LLP has a team of professionals working across legal disciplines who are prepared to actively guide our clients through the challenges presented by these anticipated opportunities.