The latest on Name, Image and Likeness? Well . . .
As Alabama opened its center for name, image and likeness, the world of NIL was once again in the news. It only created more questions than answers.
As Alabama opened its center for name, image and likeness late last week, the world of NIL was once again in the news. If you’re hoping the news means clarity for NIL in the college athletics landscape, well . . .
Guess it depends on which senator you ask on the issue. We’ll come back to this though.
With a number of news stories popping up in the last week — and the expectation of more to come — let’s take a look at the latest in the world of NIL.
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Class action lawsuit for House v. NCAA
House v. NCAA is an antitrust lawsuit seeking compensation in the form of backpay in response to the plaintiffs — Arizona State swimmer Grant House, former Oregon and current TCU basketball player Sedona Prince and former Illinois football player Tymir Oliver — being deprived the commercial use of their name, image and likeness prior to July 1, 2021. This took a major step forward on Friday for the plaintiffs and a large number of former, current and future Division I athletes.
Judge Claudia Wilken, a federal judge in California, granted class-action status to a portion of the antitrust lawsuit against the NCAA and the nation’s top collegiate conferences, challenging the NCAA’s remaining rules in regards to an athletes’ NIL.
“We are exceedingly pleased with the court’s order in his monumental lawsuit on behalf of college athletes,” Steve Berman, managing partner of Hagens Berman and attorney for the class of athletes, said in a statement following the decision. “We look forward to receiving the court’s review of the proposed damages classes in a separate order and will continue our fight for the rights of this class.
“College athletes have been at the mercy of the NCAA’s draconian policies for far too long, earning the institution billions of dollars from their name, image and likeness. The players make the game, and we think it’s high time that the rules prohibiting athletes from being paid by schools or conferences for use of their likeness are struck down, which is what the injunction will accomplish.”
The NCAA — which has been mostly hands-off to date in its governance of NIL and the rules that surround it — did not contest this particular issue because the rules will have to change regardless. Better said, the NCAA — nor its Power Five conferences — opposed the certification of the 184,000 athletes within this particular class because while the three athletes mentioned above specifically brought the case forward, it doesn’t matter if “the trio represent thousands of former and current college athletes or merely themselves, their demand for changes to rules would be the same.”
What this decision does: Certify the 1840,000 athletes that competed at some point from June 15, 2020, to the date of judgment (currently set for Jan. 27, 2025). This also challenges the NCAA’s remaining rules regarding athletes’ ability to make money from their NIL and the ability to cap compensation.
What this decision does not do: Address the piece of the case that is seeking class-action status for a damages claim that, according to filings by the NCAA, could be worth more than $1.4 billion. This is the part that the NCAA and Power Five conferences most firmly oppose, because it could broaden the definition of NIL and force payments from schools for things like media broadcast rights.
The judge said she will resolve this portion of the matter in a separate order.
Depends on who you ask
A group of athletic directors representing some of the major college athletic departments were on hand one week ago in Washington, D.C., as senators addressed the future of college athletics. Those athletic directors and the Power Five conferences want something from Congress to bring order to the world of NIL — just refer back to the section above to understand why — but it doesn’t appear that anyone is on the same page.
While Sen. Ted Cruz, R-Texas, said he believes there is a “60-40” chance that Congress will pass a college-sports bill, others like Sen. Chris Murphy, D-Conn., were less optimistic. Simply put, this just isn’t a priority for Congress right now.
In late July, Murphy and Rep. Lori Trahan, D-Mass., introduced the “College Athlete Economic Freedom Act.” Here’s what that bill includes:
A required review of the schools’ compliance with Title IX to ensure equal support is provided for women athletes to secure NIL deals, and a “prohibition of college and NIL collective practices that discriminate on the basis of gender, race or sport.”
Prevent schools from using an athlete’s NIL, including for media rights deals and appearances, without obtaining a group license from those athletes.
Allow athletes from foreign countries to engage in NIL while in the United States.
Require collectives and the schools they represent to be formally affiliated with one another.
There have been other bills brought forward as well, including one from Sens. Tommy Tuberville, R-Ala., and Joe Manchin, D-W. Va., and a discussion draft of a bill by Sens. Richard Blumenthal, D-Conn.; Jerry Moran, R-Kan., and Cory Booker, D-N.J. The bill from Manchin and Tuberville, for example, is more focused on state-to-state disparities and attempting to keep athletes at one school for at least three years before transferring.
None of these proposed bills have advanced out of the committee stage to date.
As for what we should take from last week’s hearing on NIL, it’s probably this quote from Murphy that sums it up best:
“I would argue for the NCAA to be convening a conversation right now about what a revenue-sharing system would look like. To be thinking about, if not collective bargaining, a model where students actually have power and, instead of just being reactionary -- which is where the industry and where the NCAA has been for decades -- sort of understand that the courts are coming for the existing paradigm. And I don't think you can count on Congress to save you.
“I think you’ve got to be thinking now about how to deal with what I think ultimately will be a requirement to start treating student-athletes in a different way.”
I don't think you can count on Congress to save you.
Doesn’t feel like the NCAA is interested in doing the saving either though.
What’s to come?
The College Football Playoff Management Committee will meet this week in Chicago to discuss, well . . . a lot. That includes NIL, and the questions surrounding that are seemingly endless.
Yet, we can probably expect little to be decided on the NIL front in the coming days. There are a lot of reasons why, with a lot depending on who will and will not be in Chicago, as well as decisions to be made about who represents who.
Plus, what can even be truly done for NIL in this particular situation?
"Eventually, there is going to have to be something [that comes of it]," Notre Dame athletic director Jack Swarbrick said of NIL discussions last week. "I don't think it will be NIL-based. It will be how collegiate sports operates."
That seems to be the response whenever asked though. Something must come of this eventually, right?
Good question. Matt Brown of Extra Points offered some thoughts last week on what the federal government can actually do for college sports, and it’s worth the read.
It doesn’t seem like the NCAA nor the federal government is interested in leading on NIL — and that may be for the best in some instances — but something will have to be done eventually. Even chipping away at some of the issues is better than nothing, because the laundry list of questions far outweigh the answers we have gotten so far. We’ve also been saying this for two years now, and yet here we are.
We’ll keep an eye on the world of NIL and keep you updated on the latest as we go.
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