By Scott Krapf, Frost Brown Todd LLC
William Shakespeare famously wrote in Romeo and Juliet, “What’s in a name?” To a modern reader, this reference frequently suggests that names are arbitrary labels. Recently, there has been increased attention around use of the name, image and likeness (NIL) of student-athletes. When we ask a similar question of student-athletes – what’s in a name, image and likeness? – we discover far more than arbitrary labels.
While the modernization of use of NIL has been a welcome dialogue for some, the reality is discussions about the NIL topic have been at the forefront of ongoing discourse for several years. Take it from me, a former Division I cross country and track and field student-athlete who had the great privilege of serving as Chair of the NCAA Division I National Student-Athlete Advisory Committee shortly after the Keller v. Electronic Arts and O’Bannon v. NCAA lawsuits were filed. Time and time again during my student-athlete and professional experiences, I have witnessed first-hand how conversations about the NIL of student-athletes can be profound and reveal multiple scenarios and issues that must be accounted for, such as the lack of a defined legal structure like those which are found for other sports leagues, recruiting issues and concerns regarding the influence of agents and boosters.
One of the more notable recent events concerning NIL occurred in September of this year when United States Representatives Anthony Gonzalez and Emanuel Cleaver introduced the Student-Athlete Level Playing Field Act (the Act). The Act proposes to prohibit a covered athletic association and institution of higher education from prohibiting a student-athlete from participating in intercollegiate athletics because such student-athlete enters into an endorsement contract and other purposes. The Act comes on the heels of several states introducing legislation in various forms, which could have the potential to cause significant challenges to manage a national issue. The Act would preempt a state from enforcing a state law or regulation with respect to permitting or abridging the ability of a student-athlete to enter into an endorsement contract or agency contract.
In addition to federal and state legislative efforts, collegiate sport governing bodies and working groups have been discussing changes, creating structures and developing solutions. In October of this year, the National Association of Intercollegiate Athletics (NAIA) passed legislation that relaxes NAIA rules related to amateurism and NIL. The NCAA membership has introduced recommendations and concepts to gather feedback and is expected to consider legislative proposals at the 2021 NCAA Convention in January.
The potential legal considerations relating to NIL extend beyond what is often analyzed from the right of publicity perspective. Although to be clear, right of publicity is fundamentally grounded in the underlying issues of the NIL topic. For example, in the Act, among other provisions, the rules of construction provide that nothing in the Act shall:
Affect the treatment of scholarships under Section 117 of the Internal Revenue Code of 1986.
Be construed to affect the rights of student-athletes or affect any program funded under Title IX.
Provide a cause of action pursuant to the Sherman Act.
Affect the employment status of a student-athlete who enters into an endorsement contract with respect to a covered athletic organization or institution of higher education.
In terms of the practical impact of potential changes, an immediate reaction might be to think of opportunities such as endorsements by elite student-athletes. There's the rub. The statistics tell a significant story here that is important to note. There are more than 480,000 NCAA student-athletes, and just a select few within each sport will complete at the professional or Olympic level. Which begs the question, who stands to benefit the most from this modernization? When we take a moment to think critically about the NIL of student-athletes, we find that while names are certainly important, beyond the names on the uniforms and the athletic performances are incredible stories of some of the most talented and gifted individuals, including writers, artists, musicians, entrepreneurs and influencers, to name a few.
As one can see, considerations pertaining to the use of NIL demonstrate a unique convergence of legal, political, policy, philosophical and administrative issues, further highlighting the complexity of finding a workable solution. As the modernization continues, I have complete confidence that a workable framework will prevail from the collaboration among the athletic administrative working groups, governance procedures, federal and state legislators and others who are involved. Most importantly, the ultimate results will be in the best interest of student-athletes and will continue to preserve the student-athlete collegiate experience, an experience that represents the pinnacle of the athletic and academic pursuits for most student-athletes.
The opportunities that lie ahead for student-athletes within the confines of a modernized NIL structure are nothing short of significant, and they surely will come with questions and a need for guidance and direction. In that regard, my call to action for other attorneys who are reading this is to ask yourselves, what's in a name of an attorney? As attorneys, we all have talents, skills and experiences extending beyond the names on the front doors of law offices and letterheads. I encourage you to be willing to share your expertise to help others navigate the complexities of the modernization of NIL use.
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