Name, Image and Likeness (NIL) Issues to Watch
One of my favorite scenes in the 1988 movie Bull Durham is a meeting on the pitcher’s mound to solve a wide variety of issues. Nuke LaLoosh (Tim Robbins) walked another batter prompting the mound discussion about his eye lids being jammed, his dad bothering him in the stands, Jose needing a head of a live rooster to take his girlfriend’s hex off his glove and Crash Davis (Kevin Costner) explaining that none of them know what to get Millie and Jimmy for their wedding present. They were dealing with a lot!
That scene is a good representation of the state of Name, Image and Likeness (NIL). All parties ranging from the NCAA to state and federal legislatures have the intent to help student-athletes monetize their own name, image and likeness, but it is a complicated path to get there.
As NIL unfolds, here are some key topics to watch:
• State Laws vs. Federal Law – the NCAA desires federal legislation to pre-empt state laws and bring national consistency, however the timing of federal legislation is unclear with a packed legislative agenda and a new administration. Meanwhile, states like California, Florida, New Jersey, Colorado and Nebraska are moving forward with their respective bills. There is general feeling that nationally the Democratic party will seek broader allowances in NIL, making the Senate run-off in Georgia a factor.
• NCAA Legislation – it is conceivable that NCAA legislation and various state laws could go into effect before federal legislation is in place. The NCAA believes NIL will be more effective with a federal bill in place, however it is reasonably believed that it will not be a “top 5” legislative agenda item for 2021 according to Sen. Chris Murphy (D-Conn.). The NCAA is scheduled to vote on NIL legislation at its Convention in January 2021.
• Government Role – the Federal Trade Commission could become a 3rd-party overseer of implementation of NIL or have the right to designate to a to-be-determined non-profit entity for enforcement and oversight.
• 3rd-Party Administrator Role – the NCAA issued a request for proposal in 2020 to find a company to manage the NIL day-to-day of 1) disclosure and transparency; 2) monitoring and evaluation; and 3) education. That process had an original decision deadline of November, which was delayed to December, and then subsequently delayed until January. The January date could also be pushed according to Mark Emmert, NCAA President, speaking at the Learfield IMG Intercollegiate Athletics Forum in December 2020.
• Education – there is consensus that education is critical, with varied approaches. The Florida law, for example, has specific requirements of hosting financial literacy and life skills workshops for a minimum of five hours at the beginning of the athlete’s first and third academic years. Whether legislated or not, education will be a critical component. This will be important for student-athletes, coaches, administrators, university leaders and even corporate sponsors.
• Conflicting Sponsors – one of the key open topics is whether student-athletes can enter deals with sponsors conflicting with official university partners. In the Olympic world, many athletes can enter conflicting deals with their respective national governing body (NGB), however it is unresolved currently in the intercollegiate NIL discussion.
• COVID-19 – multiple speakers at the Learfield IMG Intercollegiate Athletics Forum commented that NIL would normally have been the predominant topic of year, however the global pandemic appropriately became the #1 priority, so it’s safe to say NIL is behind where it might be in normal circumstances.
Look for all of this to play out in the coming months, with 2021 resulting in all parties needing to adapt as it goes. Fortunately, it is all based on a collective effort to move forward with NIL.