By: Michael Lehr

Ready – Set – Shift: NCAA’s NIL Overhaul

NCAA Student-Athletes MAY Now Be Able to Monetize Their Name, Image, and Likeness | Part 4

This is the final part to the series “Ready – Set – Shift: NCAA’s NIL Overhaul.” If you would like to read former parts to this series: Click here to read part one; Click here to read part two; Click here to read part three.

It is clear that the Supreme Court’s NCAA v. Alston decision has opened Pandora’s box, and the issues and questions flowing from the NCAA’s interim rule, along with the litany of new state laws, will further complicate the matter. Presently, the NCAA’s interim rule is as follows: 

  1. NCAA student athletes may engage in NIL activities that are consistent with the laws of the state where the college or university is located. An “NIL activity” is one that involves the use of an individual’s name, image, or likeness for commercial or promotional purpose. 
  2. If the student athlete attends a college or university in a state that does not have an NIL law enacted, the athlete may engage in “this type of activity” (presumably benefiting from use of their NIL) without violating the NCAA’s rules and regulations. 
  3. NCAA student athletes may use a “professional services provider” for NIL activities. These providers include any individual or entity that provides third-party services to prospective or current student athletes, such as: agents, tax advisors, marketing consultants, brand management companies, and, of course, attorneys. 
  4. The NCAA student athletes must report all NIL activities consistent with their state’s laws and/or the requirements of their school and conference.[1],[2] 

Importantly, these rules do not abrogate or amend the NCAA’s rules regarding “pay-for-play” and “improper inducements” tied to attending one school over another. In other words, the NCAA’s prohibition on paying a student athlete to attend a specific school or paying a student athlete directly for their athletic achievements remain in full effect. Additionally, the NCAA requires that any NIL agreement that benefits a student athlete be tied to a “quid pro quo” relationship, meaning that the athlete may not be compensated for work not performed. 

Although the NCAA anticipates that its member schools, conferences, and state legislatures may adopt more specific rules and policies, the interim policy provides no further guidance on the NIL rules’ parameters. The NCAA is relying on the individual conferences and member schools to inform their students and guide them through any questions that may arise during their tenure as student athletes. The NCAA stated that the interim rule shall remain in effect indefinitely until “federal regulation or new NCAA rules are adopted.” However, it provided no semblance of an idea as to when either may occur. The NCAA’s Board of Governors has announced plans to hold a “special constitutional convention” in November of 2021 to discuss dramatic changes to the NCAA’s Constitution and system of governance. The Board of Governors further stated that they expect to take actions on their proposed system at the NCAA’s scheduled convention in January 2022. Notably the Board of Governors’ announcement did not directly address whether the dramatic revisions to the Constitution will concern NIL matters, but it did state that the purpose was to “propose dramatic changes to the NCAA Constitution,” in part to propose a “new governance model that allows for quicker change without sacrificing broader values.” (emphasis added). Presumably, this will affect the NCAA’s interim rule, but we will not know until early 2022. 

During this interim period, student athletes and their parents, as well as coaches and athletic directors, should recognize and appreciate the shifting nature of what it takes to comply with their state’s applicable law, as well as NCAA and university guidance and rules on point. In this way, athletes stand a better chance of maximizing their potential NIL-related earnings during peak pre-pro years. 

Dunlap Bennett & Ludwig has a uniquely qualified team of intellectual property, media, branding, and entertainment attorneys with decades of relevant experience dealing with NIL matters involving some of the world’s top brands and media companies and personal experience with NCAA athletes. When it comes to dealing with NIL matters, we’re ready to provide highly personalized and customer-focused business and legal affairs services to NCAA athletes, parents, college coaches, and athletic directors.

This is the final part to the series “Ready – Set – Shift: NCAA’s NIL Overhaul.”

Read: Ready – Set – Shift: NCAA’s NIL Overhaul Part 1
Read: Ready – Set – Shift: NCAA’s NIL Overhaul Part 2
Read: Ready – Set – Shift: NCAA’s NIL Overhaul Part 3

The author, Michael Lehr, is an Associate at the law firm of Dunlap Bennett & Ludwig, PLLC. Kurt R. Klaus and Alex Butterman contributed to writing this article.

Dunlap Bennett and Ludwig, PLLC: is a multi-state and international law firm whose Media & Entertainment Law Section attorneys have decades of experience dealing with NIL (individual name, image, and likeness) matters, intellectual property, business formation, and disputes, and commercial transactions.

Michael Lehr is a litigation attorney who routinely deals with intellectual property disputes such as trademarks and copyrights that may arise in modern media/entertainment. Michael provides businesses and individuals with legal counsel whenever disputes arise and helps his clients navigate the complex waters of litigation—while trying to help them avoid it at all cost. Michael is an avid sports fan.

Kurt R. Klaus (Media & Entertainment Law Section Lead) is a media/entertainment business and legal affairs attorney who provides counsel to individuals and companies working in entertainment (television, music, digital, talent, copyrights) and branding (influencers, trademarks, social media, compliance). Kurt structures conventional and creative solutions for clients that mirror the needs of emerging and traditional media/content landscapes. He supports contractual and pre-litigation aspects of entertainment, marketing, and social media functions and partnerships, including media content production and distribution, influencer engagements, branding transactions, and NIL rights and negotiations. Prior to practicing law, Kurt produced television commercials and worked in the recording industry. Kurt is the father of an NCAA D-I athlete and an amateur sports enthusiast.

Alex Butterman (Trademarks Section Lead) is an intellectual property attorney specializing in the procurement, registration, enforcement, and maintenance of trademark and copyright rights and leads the trademark registration practice at Dunlap Bennett & Ludwig. Alex was a trademark examining attorney at the U.S. Patent and Trademark Office and has worked in several intellectual property boutique law firms for the past two and a half decades. Alex is an avid sports fan, and in law school, authored an article about the Major League Baseball anti-trust exemption, which was published in an American Bar Association section journal.


[1]           Name, Image and Likeness Policy: Question and Answer, National Collegiate Athletic Association, https://ncaaorg.s3.amazonaws.com/ncaa/NIL/NIL_QandA.pdf, July 2021, last accessed: September 10, 2021.

[2]           NCAA adopts interim name, image and likeness policy, Michelle B. Hosick, National Collegiate Athletic Association, https://www.ncaa.org/about/resources/media-center/news/ncaa-adopts-interim-name-image-and-likeness-policy, June 30, 2021, last accessed: September 10, 2021.


 

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Posted in: Intellectual Property

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