August 10, 2020

Volume X, Number 223

August 10, 2020

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Florida Senator Rubio Introduces Federal Name, Image, and Likeness Legislation

Although Florida Governor Ron DeSantis has just signed into law Florida’s state name, image and likeness legislation, Florida U.S. Senator Marco Rubio has introduced proposed federal legislation to address concerns regarding the ever increasing number of states introducing legislation addressing the name, image and likeness rights for student-athletes within their states. Sen. Rubio’s proposed legislation,

The Fairness In Collegiate Athletics Act, would require the National Collegiate Athletic Association (NCAA) to implement rules that will allow student athletes to be compensated for their name, image, and likeness (NIL) by June 30, 2021, one day before the effective date of the Florida state law.

The bill would also provide a protective legal shield to prevent the NCAA from being challenged in court as long as the association changes its rules to allow athletes to earn money for endorsement deals and personal appearances.

The Fairness in Collegiate Athletics Act would:

  1. Require the NCAA to implement rules for student athletes to be compensated for their NIL by third parties by June 30, 2021. The NCAA must set forth, processes that, at a minimum:

  • Allow student athletes to obtain professional representation in matters related to NIL, subject to protections under the Sports Agent Responsibility and Trust Act;

  • Require student disclosure, at the time of agreement and payment, to both their university and the NCAA in a clear, uniform way;

  • Preserves amateur status;

  • Ensures appropriate recruitment of prospective student athletes;

  • Prevent  “Boosters” from recruiting or retaining students.

  1. Authorize Federal Trade Commission enforcement under unfair or deceptive practices statutes.

  2. Provide safe harbor for implementing policies set forth.

  3. Provide preemption of state laws based on NIL.

Under the bill, the NCAA would have the latitude to make rules “as are deemed necessary” to:

  • preserve the amateur status of student athletes

  • ensure appropriate recruitment of prospective student athlete

  • prevent illegitimate activity with respect to any third party seeking to recruit or retain student athletes … including any third party” that has “a prior or existing association, either formally or informally” with a school or that has “a prior or existing financial involvement with respect to” college sports.

To provide the shield to protect the NCAA and schools from lawsuits, the bill says “no cause of action shall lie or be maintained in any court” against the NCAA or university member of the NCAA for adopting and enforcing rules under the proposed legislation.

Commenting on the bill, Sen. Rubio, stated,

As states continue to pass laws determining how college athletes can be compensated for their name, image, and likeness, it is clear that a patchwork of 50 state laws would be devastating to college sports. The Fairness in Collegiate Athletics Act is an effort to ensure the NCAA implements policies for NIL and even the playing field.”

The legislation has received initial support from several conferences including the Atlantic Coast Conference (ACC) and the Southeastern Conference (SEC). Big 12 Commissioner Bob Bowlsby commented, “…we are committed to working with policymakers to craft a system that permits student-athletes to profit from their name, image and likeness while also maintaining our uniquely American, education-based collegiate athletics model.”

Despite its supporters, the proposed legislation was criticized by Ramogi Huma, executive director of the National College Players Association, who stated, “Senator Rubio’s bill undermines the rights and protections guaranteed to Florida athletes that the Florida state legislature and governor adopted as law just days ago. It undermines economic freedom, states’ rights, and gives the NCAA immunity for illegal activities. We encourage him to change course on this issue.”

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 171

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About this Author

Gregg E. Clifton, Collegiate Sports Attorney, Jackson Lewis, disciplinary hearings Lawyer
Office Managing Principal

Gregg E. Clifton is Office Managing Principal of the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as one of the editors of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major...

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