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USA Today
NCAA unveils proposed rules changes related to athletes' name, image and likeness
Steve Berkowitz
College athletes would gain new and significant abilities to make money
from the use of their name, image and likeness, beginning Aug. 1, 2021,
under a series of specific proposals for Division I rules changes
unveiled Friday.
However, the proposed rules changes would give schools discretion to
prevent athletes from having deals that are deemed to conflict with
existing school sponsorship arrangements. These restrictions could put
the NCAA at odds with the provisions of laws that have been passed by
four states and are set to take effect in the coming months and years.
And late Saturday, Sen. Richard Blumenthal, D-Conn., said in a
statement to USA TODAY Sports that the restrictions appear to make the
proposal "functionally useless" and, as a result, it "will do little to
change the current exploitive state of college athletics."
Blumenthal is among a group of senators, including Vice President-elect
Kamala Harris, who have called for the enactment of what they term a
college athletes' "bill of rights."
On the state level, California Sen. Nancy Skinner — who wrote the law
set to take effect there Jan. 1, 2023 — said in statement Saturday
night: "the NCAA’s proposal still comes up short. It doesn’t give
college athletes the autonomy and full range of benefits that
(California's law) does. So I call on the NCAA Board of Governors to
refine this proposal."
The proposed rules changes were listed in a document outlining changes
that are scheduled to be voted on by the NCAA Division I Council during
the association’s convention in January. The Council, comprised of
representatives of the various conferences, is the primary rules-making
body for the association’s top-level schools.
Conferences can offer amendments to any of the proposed rules changes
until Dec. 15, meaning the changes proposed Friday could be altered
further before they are voted on. Meanwhile, bills relating to this
topic remain pending in both the U.S. Senate and House of
Representatives.
Florida state Rep. Chip LaMarca, author of a name-image-and-likeness
law set to take effect July 1, 2021, said on Twitter: "Sadly, the NCAA
failed again & the states must continue to pass #NIL laws until the
Feds create a solution."
The basic contours of the NCAA's proposed changes have been discussed
previously by association and college sports officials, but this is the
first time the changes have been put into fully formed prospective
rules.
The rules changes being proposed also generally would apply — at least
from the NCAA's perspective — to prospective college athletes. The
document unveiled Friday says: "This model would ensure consistency and
clarity for prospective student-athletes" and minimize "the risk of
prospective student-athletes entering into agreements or relationships
before full-time enrollment that could render them ineligible when they
become student-athletes."
How this would connect with various current state high school athletic association rules remains to be seen.
The NCAA proposals also call for college athletes and prospective
athletes engaging in name, image and likeness business activities to
disclose those activities to "an independent third-party administrator"
that is not detailed further.
But in citing the need for such an entity, the new document
acknowledges "boosters may be the most likely sources of opportunities
for student-athletes to engage in name, image and likeness activities.
Student-athletes should be permitted take advantage of legitimate
opportunities, even if the source of the opportunity comes from a
booster of the institution."
College athletes also would be allowed to make money for signing
autographs and for providing instruction lessons. They would be allowed
to sell memorabilia once they have completed their eligibility. They
also would be able to use crowdfunding sites to raise money for
educational expenses that exceed the cost of attendance.
More broadly, according to the proposals, athletes would be allowed to
use their name, image and likeness (NIL) “to promote … athletically and
nonathletically related business activities (e.g., products, services,
personal appearances).” Athletes would be allowed to mention their
involvement in sports and the name of the school they attend. However,
they would not be allowed to use any institutional marks, such as logos.
Specifically, the proposals say athletes would be allowed “to advertise
or promote the sale or use of a commercial product or service, provided
there is no institutional involvement in the arrangement.”
Athletes would be allowed to use what the proposals call "professional
service providers" — but not school employees or contractors — to seek
and negotiate deals, but the athletes will face requirements concerning
disclosure of their NIL activitiesand other significant restrictions:
► They would not be allowed to engage in NIL activities involving a
commercial product or service that conflicts with NCAA legislation.
That means they cannot be involved with sponsorships related to sports
betting or banned substances.
► Athletes’ NIL could not be used by “an athletics equipment company or
manufacturer to publicize [that] the institution's athletics program
uses its equipment.” This would seem to heavily narrow or foreclose an
athlete's ability to have a sponsorship deal with a shoe and apparel
company that has a contract with the athlete’s school. California's NIL
law would allow athletes to have deals with shoe and apparel companies
that sponsor their respective schools.
►Schools would be able to prohibit an athlete from being involved in
NIL activities that “conflict with existing institutional sponsorship
arrangements. An institution, at its discretion, may prohibit a
student-athlete’s involvement in name, image and likeness activities
based on other considerations, such as conflict with institutional
values, as defined by the institution.”
In his statement Saturday, Blumenthal said: "This disappointing
proposal appears to be just more of the same from the NCAA, which has
always prioritized its own self-interest above its athletes. … The
NCAA, member schools, coaches and athletic directors need to put their
money where their mouth is and get serious instead of continuing to
stall on protecting student athletes’ economic rights and health."
The schools would be required to have policies that establish the NIL
activities in which athletes may or may not engage, and they would have
to provide those policies to prospective student-athletes.
This has the potential to heavily narrow commercial opportunities
available to athletes, as many schools have sponsorships with a broad
array of companies in many brand categories, from shoes and apparel to
local car dealerships, banks and restaurants.
This restriction is where the conflict with state laws could occur.
Recently enacted statutes in California, Colorado, Nebraska and New
Jersey include provisions that would prevent athletes from having an
endorsement contract that would conflict with a school contract.
But those states’ laws also say that schools cannot have contracts that
prevent athletes from using their NIL for a commercial purpose when the
athlete is not engaged in official team activities.
(Florida's impending law does not have the additional provision regarding athletes' activities outside official team settings.)
In other words, those states’ laws would appear to prevent a school
aligned with one company from preventing its athletes from having a
deal with a competing company, as long as the athlete is keeping the
promotional activities separate from official school activities.
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