A new era of collegiate athletics will begin Thursday when several new laws across the country take effect allowing athletes to profit off of the use of their name, image and likeness.
The Division I board of the NCAA, which governs players and coaches at over 1,200 colleges and universities, voted Monday to advance interim policies that would suspend the body’s current rules related to name, image and likeness. Those rules essentially state that any player profiting off their status as a collegiate athlete forfeits their status as an amateur and becomes ineligible for competition.
Introducing legal, above-board payments will change college sports on a level not seen since the federal Title IX law of 1972 mandated equal opportunity for any program that receives federal funding, regardless of a person’s sex. But the lack of a cohesive set of rules has made an already complicated process even more challenging, experts say, and time is running out before college athletes will no longer face repercussions for profiting off their celebrity.
What does name, image, likeness mean?
Name, image and likeness refers to an individual’s ability to capitalize on their publicity and be compensated through third-party endorsements.
For example, if University of Kansas basketball player David McCormack gets paid money to advertise a company in a sponsored social media post, he would be utilizing his name, image and likeness.
Until now, the NCAA has strictly prohibited any college athletes from using their name, image and likeness in such agreements, even on an unpaid basis.
How and when did this debate start?
California in September 2019 became the first state with a law on its books allowing college athletes to profit off the use of their name, image and likeness. Since then, dozens of states adopted similar legislation and created a challenging puzzle for the NCAA, which has been embroiled in legal battles related to an athlete’s amateur status for years.
The crux of the argument around NIL profits is that it’s unfair for college athletes to make millions of dollars for their schools and athletic departments while receiving no money in return. And when California made it illegal for athletes to be barred from profiting off their own likeness, it raised questions across college athletics of how schools could compete for recruits if they could make money while in college in one state, but not another.
NCAA officials in 2021 have relented and voiced somewhat tepid support for allowing athletes to profit off their own likeness. The body, though, held out extended hope that Congress would pass a federal version of NIL law, making the process easier for states to navigate rather than passing individual laws. Congress, preoccupied with legislating the COVID-19 pandemic, however, failed to pass such a law before the initial California law, and the others like it, go into effect July 1.
What do the NCAA’s interim rules say?
- College athletes can engage in NIL activities that are consistent with the law of the state where the school is located. Colleges and universities are responsible for determining whether those activities are consistent with state law.
- Student-athletes who attend a school in a state without an NIL law can engage in this type of activity without violating NCAA rules related to name, image and likeness.
- College athletes can use a professional services provider for NIL activities.
- Student-athletes should report NIL activities consistent with state law or school and conference requirements to their school.
Mit Winter, a sports law attorney with Kansas City firm Kennyhertz Perry, said the NCAA’s interim rules really only have two mandates: NIL deals can’t be in return for an athlete’s performance (also known as “pay-for-play”) and they can’t be used as recruiting tools to entice an athlete to attend a specific school.
Why is this such a big deal?
In general, the change to NIL rules means you’re now almost certain to start seeing college athletes in commercials for local businesses or signing paid autographs, which they’ve never been allowed to do before.
But Congress’ failure to pass an across-the-board NIL law has created a giant logistical headache as the NCAA and states have scrambled to implement their own policies by Thursday, when the landscape of college athletics will be permanently upended. This means that each state — and even individual schools — will have different rules for what athletes can and can’t promote, and how endorsement deals are regulated.
For states like Kansas, which have no NIL laws on the books, it’s an even bigger challenge. The interim NCAA rules, which advanced Monday and are subject to a final vote and passage by Wednesday, tell schools without a state NIL on the books that their athletes can profit off their likeness without fear of punishment, but individual athletic departments and conferences are on their own in terms of policy and oversight.
This means that for rival schools like KU and Kansas State University, for example, differences in NIL policies could theoretically make a difference in whether a prospective athlete chooses to attend one school over the other, Winter said.
“Because of that, the schools are going to try and draft their policies as permissively as possible while trying to adhere to some kind of baseline guidelines that allow them to keep track of the deals their athletes are entering into,” Winter said Monday.
What issues will this bring into play?
Winter, a former D-1 athlete himself, said the uncertainty around NIL policies will bring numerous challenges into play, especially in states with no laws on their books.
- Will a school impose restrictions on the types of businesses or services an athlete can enter into an NIL deal with?
- Can athletes use school trademarks in connection with a deal?
- When can athletes enter into NIL deals?
- Can athletes use school facilities in creating promotional materials for their deals?
- Will athletes be charged to use licenses or trademarked university materials, as other businesses would?
- Do athletes have to disclose their deals to the school? If so, when and how often?
- Will schools have to disclose athlete NIL deals to the public?
- Could a high school athlete who is committed to a particular school start entering into NIL deals?
All of these issues, and more, remain unclear for a majority of schools and athletes heading into July 1, Winter said.
Is KU working on an NIL policy?
Dan Beckler, the communications director for Kansas Athletics, did not answer an email last week from the Times seeking comment on KU’s plans for NIL, nor did he immediately return a text message Monday asking more directly if KU is actively working on its own iteration of a name, image, likeness policy.
However, the Times confirmed via a source with direct knowledge of KU’s plans that the university has retained outside counsel to assist in drafting its NIL policy.
What exactly KU’s policy will look like, and when it will be unveiled, is unknown.
Other state governors have been signing executive orders with name, image, likeness rules. Will Kansas be one of them?
No. Though Gov. Laura Kelly, a Democrat, has voiced support for students profiting off of the use of their name, image and likeness, she does not have the power to issue an enforceable executive order related to college athletics.
Since the Kansas Board of Regents is the governing body of public colleges and universities in the state, it would exceed the governor’s constitutional authority to issue an executive order related to the business of a higher education institution. The Board of Regents, a nine-member body that governs Kansas’ five state universities, has not addressed the issue of NIL policy for the state’s college athletics, and will not have another regular board meeting until September.
Kansas is different from other states, such as Kentucky and Ohio, that have issued executive orders related to NIL because those states don’t have a centralized governing body for their higher education institutions.
— Conner Mitchell (he/him), reporter for The Lawrence Times, can be reached via email at email@example.com or 785-435-9264.
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