Name, image, likeness: how blurred are the lines?

24 states have been anticipating the change in college athletics that allows student-athletes to profit off their name, image, and likeness (NIL) by enacting legislation that will assist their universities in determining right from wrong. As for the other 26 states, they will rely on the preliminary, and vague, NIL rules provided by the NCAA. 

“With a variety of state laws adopted across the country, we will continue to work with Congress to develop a solution that will provide clarity on a national level,” NCAA President Mark Emmert said in a statement. “The current environment – both legal and legislative – prevents us from providing a more permanent solution and the level of detail student-athletes deserve.” 

NCAA’S VAGUE APPROACH LEAVES THE DOOR OPEN FOR CONFLICT

The NCAA has effectively tried to put a band-aid on a bullet hole in dealing with NIL policies. The organization has fought the inevitable by trying to win in federal court and the court of public opinion rather than being proactive and coming up with an equitable solution for student-athletes. 

The NCAA initially wanted a federal solution that would address NIL concerns in all 50 states. In addition, the organization wanted to include antitrust protections that would insulate itself from future legal issues. Unsurprisingly, this failed at multiple venues leaving the NCAA to instruct universities to abide by their state’s legislation. The fallout of the NCAA’s poor response is leaving the door open for athletes, businesses, and third parties to push the boundaries of what is allowed. 

byu assists in nil deal that pays tuition for football walk-ons

Built Brands Company (Built), a sponsor of the Brigham Young University (BYU) Cougars football team, will pay the tuition for all 36 walk-ons through an NIL deal that the university’s athletic department helped set up. 

BYU released a statement which said that all 123 football players on the team were being offered an endorsement deal with Built, though scholarship athletes can earn $1,000 for being brand ambassadors. The players who signed NIL deals will wear Built branding on their practice helmets and will also participate in “experiential events” for the company, the school said. Walk-on players will also do additional social media and experience promotions as part of their deals. Built will pay the players directly, an amount equivalent to the cost of tuition. 

The NIL deal seems to starkly violate the pay-for-play clause which prohibits a sponsor or athletic department from paying student-athletes to be recruited or play for any team. 

BYU associate athletic director Gary Vernon told ESPN, “We feel blessed because we don’t have state law on the books.” 

This is the direct impact from the NCAA’s mismanagement of NIL policies, which could have a waterfall effect on states without NIL legislation enacted. The “wild west” may be re-emerging after this latest news from BYU. 

Idaho, like Utah, is a state that has yet to enact NIL legislation so local businesses may attempt to provide similar deals for sports programs before there is a change in state or federal law. 

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other issues facing your company.