Name, Image, and Likeness — The NCAA and the Landscape of College Sports

Photo by Riley McCullough

If you follow college athletics you are likely aware of the recent changes to Name, Image, and Likeness laws (“NIL”) allowing college athletes to earn a profit from their personal brands. The NCAA has feared this for decades. Thanks to the famous O’Bannon case from the late 2000s, social media, and the Supreme Court ruling in NCAA v. Alston, the NCAA can no longer run away from the idea that athletes should be paid for the use of their name image and likeness.

“NIL might prove to be good for college sports. Some theorize it may entice players to stay and play longer. We have seen a few examples of this, although it is hard to say whether the decision was made for NIL reasons. It isn’t far-fetched to think athletes will want to stay and maximize earning potential. ”

What exactly is NIL?

In simplest terms, NIL allows for a college athlete to take payment (monetary or in kind) from any party who wishes to use their endorsement, purchase their signature, or otherwise associate with the athlete in some capacity.

NCAA rules continue to prevent schools from paying players directly, and high school athletes are currently not allowed to participate in NIL in most states. The NCAA released new guidance in October of 2022 allowing for more involvement by the institutions themselves. Additionally, most states have enacted their own NIL laws, and those that have not are required to promote guidelines like those provided by the NCAA.

The California-Florida Impact

No two states have influenced the NIL movement more than California and Florida.  In the fall of 2019 California signed the Fair Pay to Play Act into law.  Shortly thereafter, Florida passed its own law and set it to go into effect July 1, 2021, before the California law would take effect.

Since then, nearly every state has enacted its own NIL legislation, and by now many have made further changes to those laws. In January 2023, for example, Florida repealed almost all restrictions included in its original legislation, leaving some of the most generous and easy to navigate rules behind.

The most notable changes are:

• Florida Colleges and Universities can help direct NIL opportunities to students

• Schools are now required to provide 10 hours of instruction before an athlete graduates, covering financial literacy, life skills, and entrepreneurship workshops

• Institutions and staff members are now protected from liability for any damage they may cause to an athlete’s ability to earn compensation from the use of their NIL as a result of routine decisions made in the course of college athletics (for example, benching a player for the season)

Many other restrictions were removed from the Florida legislation. Initially, athletes were unable to involve any university intellectual property in their NIL campaigns, but that restriction has now been removed, suggesting athletes will now be able to strike even more lucrative deals donning their jerseys. Arguably, the removal of these restrictions makes Florida the more attractive place for athletes hoping to capitalize on their short time in collegiate athletics. Many other states are taking a note from Florida and aiming to remove restrictions within their own laws.

National Conversation on NIL

Many people have expressed a belief that NIL signifies the downfall of collegiate athletics. Amateurism is the heart of college sports. The NCAA, and the colleges and universities operating within the NCAA system, have profited many billions of dollars. With this, athletes and their supporters often ask why they should not receive some financial benefit as well.

Opponents of NIL claim that allowing athletes to capitalize on their talent is detrimental in a few ways. First, it will crush less notable athletic programs, making it hard for anyone outside of the Power Five to compete for recruits. Second, fans will flee college athletics because the amateurism is what people like about college sports to begin with.

Recruiting issues are proving to have more to do with NCAA changes to the rules on the transfer portal, and less to do with where an athlete can get the best NIL deals. Further, since the enactment of many NIL laws in 2021, we have yet to see a drop off in popularity of college sports. Just one night of March Madness games this year garnered an average of 9.3 million viewers, a record number for the NCAA’s premier basketball event. With almost two full seasons into NIL, it appears few fans care that athletes are now able to make a few dollars while working hard at their sport.  

NIL might prove to be good for college sports. Some theorize it may entice players to stay and play longer. We have seen a few examples of this, although it is hard to say whether the decision was made for NIL reasons. It isn’t far-fetched to think athletes will want to stay and maximize earning potential.  

What Comes Next? 

The landscape isn’t without its issues. The lack of continuity from state to state in handling NIL, the NCAA’s questionable guidelines, and the predatory nature of some “NIL experts” must be figured out. State politicians are watching things unfold, paying close attention to what their neighboring states are doing and working to keep their NIL laws up to date and effective. For now, athletes and brands should be going after deals with the help of trusted advisors. NIL is likely here to stay.

For more information on this article and this topic, contact Shannon Straughan.