By Aron Solomon
Last week, in deciding Alston v. NCAA, the Supreme Court stayed away from a critically important issue – the student-athlete monetization of their name, image, and likeness, known as NIL.
Then mere hours after the Alston decision, the NCAA announced that they had set a July target (yes – only eight days following their announcement) for the adoption of interim rules that would allow college athletes to be paid for their NIL.
The Business of College Sports site has an NIL tracker that they are diligently updating. The tracker shows all of the NIL legislation, including which states have passed NIL laws. There is a massive disparity between state action here.
Michael Epstein, a New Jersey lawyer, observes that for NIL rules to be fair they need to be applied equally to athletes across the country:
“In New Jersey, S 971 was signed into law in September, yet the law doesn’t go into effect until the fifth academic year after passage – 2025. Absent Federal legislation of the Supreme Court invalidating all laws restricting a student-athlete’s ability to make money by selling the rights to their name, image and likeness, how is it fair that your choice of college determines how and what you can earn?”
The way this is all going to work in practical terms is remarkably complicated. From the perspective of colleges across the country, preparing for the NIL changes was perfectly characterized by an LSU administrator quoted in an ESPN piece as “building an airplane when you’re flying.”
As to the actual complexity of implementation, let’s turn back to the ESPN feature and the relevant Louisiana rules, which are expected to be signed into law on Wednesday and to become effective the next day, July 1st:
“By way of example, let’s dive down a rabbit hole. Louisiana’s state law, which is expected to be signed by the governor sometime this week, prohibits college athletes from endorsing alcohol. It’s clear that means an LSU football player could not appear in a Budweiser commercial, but could he endorse a local liquor store that also sells soft drinks and snacks? Could he endorse a Baton Rouge bar that doubles as a pool hall? What about a restaurant that serves food along with alcohol? Where do you draw the line? Schools will have to make the initial decision.”
What those of us who closely follow the business and legal aspects of college and professional sports expect to see over the next weeks and months is litigation. The beer company ad is the easy call but it’s also going to be ripe for challenge, especially where the student-athlete in question is 21 or over. The judgment calls are going to be endless, with not only each state presenting unique legal and factual circumstances, but each city, town, and county as well.
The only thing that is certain is that we have entered a new era, where colleges have NIL consultants and student-athletes are now sure to follow. In what will be a race to see who can be the best and fastest to monetize, there’s bound to be a bit of a bull-in-a-china-shop effect. In moving fast and breaking things, there is an inevitable clean-up ahead.
