Pressure is on for the NCAA Name, Image, Likeness (NIL) Working Group

NCAA Name Image Likeness NIL Pay college athletes

California Governor Gavin Newsom created a firestorm when he signed the Fair Pay to Play Act into law. Starting in 2023, college athletes in California will be able to profit from their name, image, and likeness (NIL). They will also be able to sign with agents. After the act became law, several states announced plans to enact similar legislation. Among those states, was the state of Flordia. Two lawmakers in Florida proposed bills seeking to give college athletes including NCAA players the ability to profit from their name, image, and likeness (NIL). Last week, Florida Governor, Ron DeSantis, endorsed the proposed legislation. This is a major development regarding college athlete rights. It could mean that if either of the proposed bills makes it to DeSantis’ desk, he will likely sign it into law. Therefore, Florida could become the next state to allow college athletes to profit from their NIL.

However, the NCAA still has a chance to get out ahead of this NIL compensation issue. The NCAA could amend its rules to allow college athletes to profit from their NIL. The NCAA already has a working group set to address the issue soon. What would happen if the NCAA did just that and allowed college athletes to profit from their NIL? Would that make the Fair Pay to Play Act a non-issue? Would the federal government still enact a law addressing the issue? Before these questions can be answered, it is important to understand why so many state and federal lawmakers have come out in support of college athletes’ rights.

The Reason So Many Legislators are Interested in College Athletes’ Rights

The short answer is because it is the right thing to do. College sports are a billion-dollar industry. It is becoming increasingly difficult to ignore the blatant inequities in college sports. The benefits that college athletes receive pales in comparison to the benefits that their labor bestows upon others. For example, It was recently reported that several high profile college coaches have access to private jets for personal use. Access to such amenities are apart of their contracts.

As if it was not enough for some coaches to make severely more money than the governor of the state in which they coach, they have to have access to private jets too.

It is things like this that make it extremely hard to argue that college athletes should not be allowed to have a bigger piece of the college sports pie. Governor DeSantis realized this fact when he was attending a football game. His reason for endorsing the proposed legislation stems from him realizing that members of the marching band can make money promoting music on their YouTube channel. However, the football players who perform in the same field do not have a similar ability to profit from their talents. It is this inherent inequity and unfairness between the rights and abilities of college athletes versus those of other students that have sparked the interest of so many lawmakers.

What Happens if the NCAA Amends its Rules to Allow NIL Compensation?

While state and federal lawmakers are busy drafting college athletes’ rights legislation, the NCAA’s working group plans to address the issue. The working group is expected to announce its findings and recommendations very soon. The pressure is certainly on for the NCAA. Everyone is waiting to see if the NCAA will make recommendations that actually benefit college athletes. If the NCAA does amend its rules to allow college athletes to profit from their NIL, what will that mean for the Fair Pay to Play Act and other proposed legislation?

A World Where the NCAA Allows College Athletes to Profit From Their NIL

If the NCAA amends its rules in a meaningful way to allow NIL compensation, there is a chance that the NCAA could make the need for legislation go away. The Fair Pay to Play Act is not set to go into effect until 2023. Accordingly, the NCAA has time to remedy this situation themselves. However, in order to accomplish that the NCAA has to be willing to make meaningful change and allow college athletes to profit from their NIL and sign with agents with essentially no strings attached. The NCAA should not try to “tether” the endorsements to education or subject them to any other stipulation. The NCAA should do the right thing and allow college athletes to profit from their NIL like the Fair Pay to Play Act other proposed legislation intends to do.

If the NCAA does that there will not be a need for legislation and it will make the Fair Pay to Play Act obsolete. However, the NCAA’s track record paints a pretty bleak picture that they will do that. Furthermore, the stance that members of the working group have taken on the issue does not lead one to believe that meaningful change will be coming from the working group. Based on this, it is likely that some form of legislation will be necessary. However, the true outcome of the NIL compensation working group remains to be seen.

Dewan Hernandez’s Reinstatement Case Exposes NCAA’s True Purpose

The NCAA demonstrated their most important values when they failed to reinstate the University of Miami basketball star, Dewan Hernandez. Hernandez is one of the 19 basketball players implicated in the college basketball scandal due to his alleged relationship with aspiring agent Christian Dawkins. Due to the alleged relationship, Hernandez’s eligibility was put into jeopardy. Although there was little to no evidence that Hernandez received an “impermissible benefit” from Dawkins, the NCAA still refused to reinstate him. As a result of the NCAA’s decision, Hernandez decided to withdraw from school and prepare for the 2019 NBA draft.

How does an organization that seeks to ensure that every college athlete is able to obtain their degree while playing their sport justify putting Hernandez in the position where he felt it was best to leave school and prepare for the pros? The answer is simple. The NCAA’s highest priority lies in the last phrase of their basic purpose.

The NCAA’s Basic Purpose

Article 1.3.1 of the NCAA Division I Manual states the NCAA’s basic purpose. The NCAA’s basic purpose is to “maintain intercollegiate athletics as an integral part of the educational program and the athlete as an integral part of the student body, and by so doing, retain a clear line of demarcation between intercollegiate athletics and professional sports.”[i] While this purpose may be noble in theory, Hernandez’s case reveals what is really important to the NCAA. What is really important to the NCAA is the last phrase of their purpose regarding maintaining the distinction between college and professional sports.

Dewan Hernandez’s Reinstatement Case

In practice, the NCAA’s basic purpose translates to the NCAA stopping at nothing to maintain the distinction between college and professional sports. Even if means failing at maintaining the college athlete as an integral part of the student body and punishing an underserving athlete. Hernandez’s case is the perfect example of this.

During the FBI’s investigation of Dawkins, an email mentioning Hernandez was discovered. This email put Hernandez’s eligibility in jeopardy because it contained a plan where Dawkins was planning to give Hernandez a series of payments over a specified period of time. However, there was no evidence that such payments were ever made, that Hernandez agreed to take the payments, or that Hernandez even knew of Dawkins’ plan.

In spite of the lack of evidence, the NCAA still levied a heavy penalty on Hernandez. The NCAA mandated that Hernandez continue to sit out the remainder of this season and forty percent of next season. Why would an organization that truly cares about “maintaining the athlete as an integral part of the student body” force an athlete into a position where his best option is to withdraw from school and prepare for the NBA draft?

The NCAA’s Most Important Purpose is to Keep College Athletics “Amateur”

The answer is simple. The NCAA’s true values revolve around doing whatever is necessary to maintain a distinction between college and professional sports, even when it is not what is best for the athlete. In spite of the lack of evidence, the NCAA still denied Hernandez’s reinstatement. They made that decision for no other reason than to re-affirm the point that college athletes are to receive no benefit outside of what is authorized by the NCAA.

Hernandez’s case is unfortunately not the only time that the NCAA has stopped at nothing to make that point, even when it hurt an underserving athlete. Remember the very unfortunate story of Donald De La Haye. De La Haye, was a kicker for the Univerisity of Central Florida (UCF) football team. He had successfully monetized his YouTube videos. The NCAA ordered him to stop making videos that featured him as a “student-athlete” or be deemed ineligible. In that case, the NCAA proved that they cared less about maintaining De La Haye as an integral part of the student body and more about maintaining the distinction between college and professional sports.

College Athletics Does not Benefit From the Decision in Hernandez’s Case

There is no logical argument that can be made for how the NCAA’s decision in Hernandez’s case benefits college athletics. How does it benefit college athletics to force a player to leave school early for the NBA draft? Especially in this case where there is no hard evidence that he violated any NCAA bylaws. College athletics gains nothing from this decision. The only benefit is to the NCAA who once again gets to reaffirm its bogus principle of “amateurism.”

[i]NCAA Manual, (2018), available at http://www.ncaapublications.com/productdownloads/D119.pdf.


State Legislator Proposes Bill to Pay College Athletes: Change is Coming

Alston v.NCAA ruling on student athletes educational benefits

Change is inevitable for college athletics as another legislator has made a move in support of college athletes rights. Washington State representative, Drew Stokesbary, has introduced a bill that would allow college athletes in Washington to profit off their name, image, and likeness. The current college athletics system is extremely unfair to the athletes who propel the billion dollar industry. Everyone can make money, except for the labor force. Coaches sign million dollar contracts.  Schools and conferences garner million dollar television deals.  Meanwhile, athletes are only able to receive a cost-of-attendance scholarship. A scholarship is invaluable. However, athletes should not be limited exclusively to that form of compensation. This is especially true for athletes who could garner endorsement deals.

Come on Now, Everyone Should be Able to Profit off Their Own Name, Image, and Likeness

The ability to capitalize off one’s own name, image, and likeness would seem to be one of the fundamental tenants of American capitalism. For the most part, it is except in the context of college athletics. Currently, college athletes are unable to profit off their name, image, and likeness without being subject to losing their athletic eligibility. Meanwhile, schools are able to market the athletes however they see fit, without the athletes receiving a dime above their scholarship. This is exactly what the bill seeks to change for college athletes in Washington state.

If Stokesbary’s bill is signed into law, college athletes in Washington will be able to profit off their name, image, and likeness. The athletes will be free to enter endorsement deals without fear of losing their eligibility. Whether this bill or some variation of it will actually become law remains to be seen. However, that is not the most important part of the introduction of the bill. The introduction of the bill is important because it proves that attitudes are continuing to change regarding college athletes’ rights. With a change in attitudes, real change is sure to follow.

Support is Growing for College Athlete Rights

More and more people are starting to acknowledge the injustices of the current college athletics system. Accordingly, the current model is being challenged on all fronts. Washington state appears to be leading the way in challenging it legislatively. However, last year a congressman from North Carolina called for college athletes to be allowed to profit off their name, image, and likeness. Representative Mark Walker did this in hopes of sparking a national debate on the issue.

The current model is being challenged in court in Alston v. NCAA. College sports enthusiasts eagerly await federal district court judge Wilken’s decision on whether the NCAA and Football Bowl Subdivision (FBS) conferences are violating federal antitrust laws by capping scholarships to cost-of-attendance. If the plaintiffs are successful, major changes to college athletics may be seen.  Either way, the losing side will surely appeal. It is possible that the case could reach the Supreme Court, should they chose to hear the case.

Similarly, the current college athletics model is being challenged by start-up leagues like the Historical Basketball League (HBL). The HBL is a start-up basketball league. The HBL seeks to offer a better option by compensating its players while ensuring they receive a free quality education. With all of the challenges being lodged at the current college athletics system, change is sure to come one way or another.