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As The NCAA Formulates Options, More States Opt To Use Legislation As The Solution For Name, Image and Likeness Rights

While NCAA President Mark Emmert addressed the attendees at the NCAA Convention in Anaheim, California, he acknowledged the issues currently facing the NCAA with regard to name, image and likeness compensation rights for student-athletes. Emmert stated, “2020 can’t be a year of business as usual. We’ve got to double down on the opportunities that we provide to our students.” Emmert acknowledged the potential need for solutions to come from outside the NCAA, acknowledging, “…in some case, we need help from Congress…, but this is our job and we got to be clear about it. This is ours to improve and make better.”

While some had anticipated that the NCAA’s annual convention would lead to the announcement of a proposed solution to the name, image and likeness issue, the NCAA remained steadfast that the short term goal for the association is to be able to forward recommendations to the NCAA’s Board of Governors in April that can be a basis for potential legislation to be considered and voted upon by next January.

Gene Smith, co-chairman of the NCAA working group established to study the name, likeness and image issue, commented,

“Everyone’s still talking, nothing’s been thrown out. Right now, everything’s on the table.”

Dr. M. Grace Calhoun, University of Pennsylvania athletic director and the chairwoman of the NCAA’s Division I Council, said small groups of athletic administrators are examining potential areas where athletes could earn money and that there is “consensus” to allow student-athletes to profit from their name, image and likeness in a “work product” situation. She suggested that this could cover things such as starting a small business, earning money for writing a book or charging for lessons in their sport. However, she cautioned, “we’re dealing with student-athletes, and when you look at the principles we’ve established, we won’t cross that line from them being students and turning into employees.”

As the NCAA asserts that it needs additional time to address this issue, new states continue to join the more than two dozen states and introduce legislation while others proceed with the process of formerly advancing bills into law.

In Michigan, House Bill No. 5217, originally introduced in November, has now passed the Michigan House Oversight Committee and continues onto the Ways and Means Committee for further consideration toward becoming law. The bill, similar to the California law, would protect the rights of student-athletes to enter into endorsement agreements for their name, image and likeness without risking their status as collegiate athletes.

In addition, the bill contains specific language addressing a concern regarding the potential use of name, image and likeness rights by colleges as a recruiting tool to attract student-athletes.

The bill would specifically prevent colleges and universities from providing a prospective student-athlete “who will attend a postsecondary educational institution” with compensation for their name, image or likeness.

Unlike other pending state legislation will delayed effective dates, the Michigan bill would become effective July 1, 2020.

While the proposed legislation moves forward in Michigan, Arizona legislators have just introduced legislation at the beginning of 2020 legislative session to amend existing law to address college athletics. Arizona House Bill 2143, introduced by Representative Anthony Kern, provides name, image and likeness rights authorizing student-athletes to receive compensation similar to most other states. The proposed amendment would also restrict colleges and universities from “providing a prospective student-athlete with compensation in relation to the use of the student-athlete’s name, image and likeness.”

Senator Kern commented,

“the NCAA makes millions of dollars, universities make millions of dollars off of these student athletes names. Let them make some money on name, image and likeness.”

Kern further commented on the reason for the August 31, 2021 effective date of the proposed legislation, “I don’t want to lose Arizona talent, Arizona students to California.”

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 25



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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