The Changing Landscape of College Athletes' Name, Image, and Likeness Rights

Change is coming to college sports! The push for name, image, and likeness rights (NIL) for college athletes is at an all time high. The NCAA is getting pressure to amend its amateurism rules on all fronts. Two current college athletes have filed a lawsuit against the NCAA seeking reformation of the NCAA's amateurism rules. Two more states have signed bills into law granting college athletes NIL rights. One state has a bill waiting to be signed into law by the state's governor. If all of those developments are not enough, the United States Senate has held two hearings regarding college athlete NIL rights. Let's take a deep dive into the changing landscape of college athletes' NIL rights.

Current college athletes, Grant House and Sedona Prince have sued the NCAA to challenge its rules restricting college athletes' ability to profit from their NIL. Grant House is a world-class swimmer at Arizona State University (ASU). He competes on the men's swimming and diving team. In addition to swimming for ASU, House competed in the 2019 Pan American Games in Lima, Peru. In both arenas, House has had tremendous success. As a result of House's success, he amassed a valuable reputation and has established quite the following on social media. House has created a successful podcast with his brother entitled the Swim Swam Podcast.

Sedona Prince is a basketball player for the University of Oregon's (OU) women's basketball team. Prior to attending OU, Prince redshirted her freshman season with the Texas Longhorns after sustaining an injury while playing for Team USA at the U18 FIBA Americas Championship. Accordingly, Prince acquired extensive medical bills. Due to the NCAA's rules, she was not able to leverage her social media to earn money to help pay her bills. Prince was forced to sit out for a year after she transferred to OU. When Prince was not allowed to play, fans made shirts that read "Free Sedona". Prince was asked if she wanted to sell the shirts to make money, but was forced to decline due to the NCAA's amateurism rules.

Due to the NCAA's asinine amateurism rules, both House and Prince missed opportunities to monetize their social media platforms. They missed opportunities while allowing their universities to use their NIL to market and build the athletic reputations of their respective universities. It is exactly this type of unfairness, that House and Prince are seeking to stop with their lawsuit. In the 95 page complaint, the Plaintiffs allege that the NCAA's rules prohibiting college athletes from profiting from their NIL violates federal antitrust laws. Specifically, the plaintiffs allege that the NCAA and its members have conspired to fix the amount college athletes can earn from their NIL to zero. The plaintiffs also allege that the NCAA and its members were unjustly enriched by the NCAA's rules.

Specifically, the Plaintiffs have challenged the NCAA's rule entitled Advertisements and Promotion After Becoming a Student-Athlete. This rule prohibits college athletes from receiving any remuneration for the use of their NIL. The plaintiffs challenged other rules in the complaint, including a rule addressing college athletes who start their own businesses. That rule allows college athletes to start their own businesses but precludes them from using their athletic reputation to promote their business. The Plaintiffs allege that the NCAA's rules are not necessary to preserve consumer interest in college sports. The Plaintiffs further allege the NCAA's NIL restrictions do not prevent the exploitation of college athletes as the rules are themselves exploitative.

College athletes in Florida and Colorado will soon be able to profit from their name, image, and likeness. Colorado and Florida have joined California in enacting legislation to allow college athletes in their state to profit from their name, image, and likeness. Last fall, California signed the Fair Pay to Play Act into law. The Fair Pay to Play Act will allow college athletes to profit from their name, image, and likeness and sign with agents. However, the Fair Pay to Play Act will not take effect until 2023. Like the California law, the Colorado law is not set to take effect until 2023. However, the Florida law is set to take effect on July 1, 2021.

Although the bills have different effective dates, there is one thing that it is the same. State legislatures have grown tired of the NCAA's undue restraints on college athletes rights. College sports is a billion-dollar industry and the NCAA is a billion-dollar non-profit organization. More and more states are realizing that it is past time for college athletes to be allowed to reap more of the benefits of their labor. This is evidenced by the fact that the Nebraska state legislature has passed a college athlete NIL bill that is now waiting to be signed into law by Governor Pete Ricketts.

While states begin to pass laws allowing college athletes to profit from their name, image, and likeness, respective universities are taking note. The University of Colorado (CU) has created a program to help their college athletes navigate profiting from their NIL. The program is entitled "Buffs With a Brand". The program will provide CU's college athletes with the tools necessary to capitalize on their NIL by teaching them personal brand management, entrepreneurship, and financial literacy. Similarly, the University of Nebraska has entered into a partnership with Opendorse to launch the "Ready Now Program" designed to help college athletes with their name, image, and likeness.

The United States Sentate has held two recent hearings on the college athlete NIL issue. The most recent came on Wednesday. During the hearing, the Senate made it clear that some type of reformation is coming. The hearing centered around the proposed "Student-Athlete Equity Act of 2020" (the Act). The Act proposes that college athletes be allowed to profit from their name, image, and likeness. However, the act places unnecessary restraints on college athletes' ability to do so. For instance, the act prohibits college athletes' from entering endorsement deals with companies who compete with companies their university has a sponsorship with. The Act also mandates that college athletes complete a semester of college before being allowed to profit from their name, image, and likeness. Both of these provisions unnecessarily restrict college athletes' ability to profit from their NIL.

Another concerning provision in the "Student-Athlete Equity Act of 2020" is that it requires the creation of a website for college athletes to publish their endorsement contracts on. This requirement is overly intrusive. College athletes should not be required to publish their earnings or potential earnings for the world to see. Transparency can be accomplished in another way. Throughout the hearing, proponents of college athlete rights pointed out these fallacies in the proposed Act. The Senate acknowledged the need for reform. Senator Lindsey Graham suggested that Congress may have a plan to adequately address college athletes' rights by September 15, 2020.