Ryan Erdman is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.
The National College Athletic Association (NCAA), a multi-billion-dollar corporation, serves as the dominant sanctioning organization for college sports in the United States. A defining feature of college sports is the amateurism that underlies all competition, where college athletes can only receive “education-related” compensation (i.e., tuition, school-supplies, room and board). To avoid ineligibility, these elite athletes cannot benefit from or be compensated for the use of their name, image, or likeness (“NIL”). However, the intellectual property rights, including the trademarks routinely protected by celebrities and professional athletes, may no longer be a concern to college athletes. Instead, they can be an exciting new opportunity for college athletes to prosper.
The NCAA Division I Council plans to meet on June 22nd and 23rd, 2021. All signs point to the group voting on the proposed NIL rules changes that would fundamentally alter athlete compensation. As noted, currently, college athletes cannot use their NIL to promote or endorse a product, even without compensation.
The movement for college athlete compensation, a controversial topic in light of the high revenue generated by college sports in the United States, has gained traction since California enacted the Fair Pay to Play Act in September 2019. Since then, 18 states are now gearing up to place novel NIL laws into effect, some as soon as July 1, 2021. The legislation places immense pressure on the NCAA to enact its own uniform rule changes, as the integrity of college sports and recruiting could collapse with inequitable practices across state lines. As recently as June 19, 2021, NCAA president Mark Emmert ensured his support for uniform NCAA policies by July 2021. The NCAA president was also noted to stress the need for federal laws despite any national NIL guidelines from the NCAA.
Of course, some still reject the notion that any changes are necessary, as compensation is seen to detract from the athletic and educational components central to athletic scholarships. Compensation is seen to not significantly impact most college athletes who are unlikely to receive several endorsement offers. Although the majority of athletes do not have national name brand equity, athletes will have local opportunities with smaller platforms. There are also concerns that the fast transition to the upcoming academic year leaves little room for oversight. A lack of education related to the legal process, rights and obligations has already given college athletes difficulties in the past. Complications often arise when younger college athletes sign contracts with agents or when they “turn pro.” Major programs have already begun partnering with companies like Opendorse, which provides athletes with education on building and monetizing their brands.
But in a digital era, social media has undeniably shifted players’ balance of power in the field. Discussing NILs, the ABA has referred to social media as the “referee that moves the sticks of monetization.” College sports’ biggest stars are polarizing public figures, some with incredibly large followings. Even those who do not have millions of social media followers are set to cash in significantly when acting as influencers or brand ambassadors. For example, the University of Connecticut’s basketball star and AP Women’s Player of the Year, Paige Bueckers, with approximately 830,000 Instagram followers, is set to become one of the most influential college athletes on social media. Athletes with larger followings are estimated to make anywhere from hundreds of thousands to millions of dollars in brand deals before their professional career even begins.
At a time when the NCAA is already under significant pressure, the recent unanimous Supreme Court decision in the antitrust case Alston v NCAA further pushes the narrative of expanded rights for college athletes. While not directly addressing the topic of NIL, the decision won by former student-athletes is a significant moment for defining amateurism in college sports, as the case dealt with restrictions placed by the NCAA on education-related benefits. As critical meetings approach and the July 1st deadline continues to loom, the next few days could fundamentally change the model of amateurism adapted by the NCAA.