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The Cold War Between NCAA And States Over Athletes' NILs
A cold war has been brewing between the National Collegiate Athletic Association (NCAA) and state legislatures over college athletes' right to profit from their name, image and likeness (NIL). Over the past four years, the NCAA aggressively lobbied Congress to pass a uniform NIL standard. Broadly speaking, the NCAA has proposed legislation that would create a national NIL registry; formally designate student athletes as nonemployees and offer the NCAA a limited exemption from federal antitrust laws. Roughly a dozen bills have been sponsored by Democrats and Republicans alike, though none has ever advanced to a vote.
In 2021, the NCAA approved an interim NIL policy, which allowed all athletes in Divisions I, II and III to be compensated for commercial use of their name, image and likeness regardless of whether their state had an applicable law in place. In issuing the policy, the NCAA preserved its ban on "pay-for-play" and other improper inducements tied to an athlete's enrollment at a particular school. The NCAA subsequently amended the policy as of Jan. 1 lowering the threshold for presumed violations. Concurrent with the amendment, the NCAA bolstered its enforcement staff and broadened their authority to investigate potential infractions.
Is NIL Contract's Extended Term With Athlete Valid?
In the absence of a federal standard, the majority of states implemented their own NIL statutes. And the past several months have witnessed sweeping changes in the statutory framework. Amid the NCAA's push to step up enforcement, state legislatures have moved decisively in the opposite direction: rapidly and significantly loosening NIL restrictions to secure competitive advantages for in-state schools. Indeed, some recently passed NIL laws not only conflict with NCAA rules but affirmatively shield athletic departments from NCAA investigation and enforcement actions.
Some of the recent state legislative includes, for example, that in November 2022, the Pennsylvania legislature unanimously passed House Bill 2633, which removed language from the commonwealth's NIL statute that prohibited schools from arranging NIL deals for student-athletes and further eliminated the requirement that student-athletes disclose contracts to their schools at least seven days prior to execution.
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