It might seem strange to be discussing student-athletes when the pervasive spread of COVID-19 abruptly shut down all college sporting events this spring and the potential for future contests continues to be uncertain. Players may not be on the field, but conversations around student-athlete compensation — particularly the ability to profit from the use of their own name, image and likeness — continue to move forward with an increasing sense of urgency.
For the uninitiated, the phrase “name, image and likeness” refers to a person’s ability to monetize their persona, appearance and/or social status. This can include accepting payment for promoting products, signing autographs, hosting summer camps, modeling and public appearances, as well as newer avenues made possible by social media platforms. While common place for professional athletes, National Collegiate Athletic Association regulations have essentially prohibited college players from monetizing their personas.
Proponents contend that student-athletes are being denied access to sources of income that their non-athlete peers are able to pursue unencumbered. In fact under the NCAA’s current policy, student-athletes can’t even use their own name if they want to create a small business as part of a class project. Allowing student-athletes to have the same opportunities as their peers in the general student body has become an issue of fairness.
The NCAA on the other hand has prohibited players from using NIL to both uphold their definition of amateurism and protect the recruitment process from manipulation. As the NCAA has cautiously opened up to the idea of modernizing their rules around NIL, these issues still drive the conversation. Worried that NIL compensation could be used as an enticement in the recruiting process, giving schools with wealthy boosters an advantage over lesser resourced ones, the NCAA and member universities have stressed the need for strong guardrails to protect both the process and students themselves from outsiders who might want to take advantage of them.
The conversation seemed to be at an impasse until 2019 when the California legislature passed the first bill enabling student-athletes in their state to receive NIL compensation. This put pressure on the NCAA and stoked the NIL fire for public advocates, other state lawmakers and federal officials. In November of that year, the NCAA announced it was pulling together a working group to discuss a national path forward. When in February of 2020 not much had come out of that working group, a Senate hearing was held. The committee strongly advised the NCAA to come up with a solution that addressed the issue nationally without the federal government stepping in. Thus the NCAA found itself, in the middle of a global pandemic, trying to figure out how to satisfy state legislators, federal judges, federal lawmakers and their constituencies.
Fast forward to late April of this year when the NCAA released the long awaited results of their working group’s deliberations. The Board of Governors announced they supported rule changes that would allow student-athletes to receive compensation from third-party endorsements – both those related to their athletic achievements and separate from them. While this might sound like a definitive answer on the subject, this is yet another step in the long, slow process of modernizing its rules. The Board’s 31 pages of recommendations will move to the individual divisions of the NCAA and the divisions are expected to create and adopt new NIL rules by January 2021. These new rules would be put into effect for the 2021-22 academic year.
If you’re thinking this decision and subsequent changes are moving at a glacially slow pace, you are not alone. Legislatures have continued to pass bills to allow college athletes in their state to profit off of NIL. This spring, Colorado and Florida legislatures joined California in passing such laws. Washington state was one of over 28 other states speeding toward passing NIL bills. Washington’s SHB-1080 may have died this past session, but NIL is not going anywhere.
Unfortunately, a patchwork of state laws compounds fairness issues surrounding NIL. NCAA member schools operate in all 50 states and the District of Columbia. If some states have NIL laws in place while others do not or every state has different versions of NIL laws in place, this would create a very confusing – and easily exploited – recruiting environment. The last thing anyone wants is an environment that creates an above-board bidding war for players by outside entities. Feeling the NCAA is not moving fast enough, members of Congress have begun working on national bills. Sens. Chris Murphy (D-Conn.) and Mitt Romney (R-Utah) formed a bi-partisan working group on the issue. Sens. Marco Rubio (R-Fla.) and Cory Booker (D-N.J.) also have been active concerning NIL while Rep. Mark Walker (R-N.C.) introduced a NIL bill in the House. A Federal law would preempt the various state laws, but with Congress facing a global pandemic and an election year, there will likely be less bandwidth to push on NIL at least for the present.
No matter how the NIL conversation lands, it is important to remember there is a reason we refer to them as student-athletes — they are students first. While studying to earn their degrees, they choose to play a sport they love against students from other colleges and universities. Yes, a handful will go on to play professionally, but the vast majority will enter the workforce in a role more closely associated with their degree than their position on the field. Remembering and protecting this student first mentality is integral to the mission of college sports within higher education. Only with a cohesive, national approach will we be able to create a system that has the potential to be fair to both students and the schools wanting to recruit them.