Higher Education Law Report
NCAA Student-Athlete Name, Image and Likeness
July 29, 2021
One month has passed since the NCAA Board of Directors adopted emergency legislation permitting student-athletes to monetize their name, image and likeness (NIL) without violating the long-standing amateurism requirements of NCAA Bylaw 12. Specifically, the NCAA: (1) acknowledged that a state law/executive order regarding NIL supersedes NCAA rules; and (2) provided blanket NIL coverage to student-athletes located in states that do not have a state law/executive order in place. This major change in NCAA legislation is charting new pathways for how student-athletes must be monitored by their institutions to avoid ineligibility. The creation of an internal institutional policy is one way to help organize and manage this new process.
In States with NIL Laws/Executive Actions
NCAA rules, including prohibitions on pay-for-play and improper recruiting inducements, remain in effect, but NIL activities protected by state law will not impact eligibility. The NCAA will not monitor for compliance with state law.
In States Without NIL Laws/Executive Actions
If an individual chooses to engage in an NIL activity, eligibility will not be impacted by NCAA amateurism and related athletics eligibility bylaws. Other NCAA rules, including prohibitions on pay-for-play and improper recruiting inducements remain in effect.
In states without NIL Laws, NCAA member institutions may now create their own policies to monitor student-athlete NIL activities. Below are a few of the key items an institution should address if it determines that the creation of an NIL policy is in its best interests:
- The biggest risk with any institutional policy is ensuring the policy is followed so no prospective student-athlete receives an “improper inducement” (Bylaw 13.2.1) or student-athlete receives an “extra benefit” (Bylaw 16.02.3). For NIL, this can be accomplished by incorporating language allowing for frequent updates/revisions to the policy and by allowing some level of deference (usually to the Director of Athletics) in addressing unique circumstances.
- Institutional Control
- NCAA member institutions still have a responsibility to demonstrate institutional control over their athletics department, student-athletes, coaches and boosters. Any NIL policy needs to take this into account. Educating student-athletes and boosters regarding NIL is highly recommended. Disclosure of NIL agreements to an institution’s athletics compliance office is strongly suggested. Ultimately, the burden remains with the institution to ensure ineligible student-athletes do not participate in competition.
- Institutional Intellectual Property
- An institution should determine what, if any, intellectual property (IP) (trademarks, logos, colors, etc.) it will allow its student-athletes to utilize in an NIL activity. If an institution wants to examine IP use on a case-by-case basis, then a process for approval of use should be established. Before an institution enacts IP limitations (or a prohibition), that institution should consider what remedies it is willing to seek in the event of student-athlete’s improper use of institutional IP, including use of the civil court system or potential institutional penalties.
- Industry Limitations
- In establishing an NIL policy, an institution has the right to limit a student-athlete’s NIL activities in certain industries, particularly in industries that are not in-line with the values of the institution. Examples include adult entertainment, gambling, alcohol, tobacco, weapons and NCAA banned substances, among others.
The NCAA interim policy creates a myriad of potential issues for an institution, including what policies to enact, if any, and the yet to be established process of NCAA enforcement of the prohibitions on pay-for-play and recruiting inducements. Additional guidance from the NCAA is available here.
The Bond Collegiate Sports Practice Group is available to help guide your institution through this process. For further assistance, please contact Kyle Ritchie of our Collegiate Sports practice at (913) 234-4421 or by email at firstname.lastname@example.org.