NCAA unveils proposed rules changes related to athletes’ name, image and likeness

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.

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.

The basic contours of the changes have been discussed previously by NCAA and college-sports officials, but this is the first time the changes have been put into fully formed prospective rules.

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.

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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,” subject to athletes being required to disclose their activities and 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.

►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.”

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 also has a college-athlete NIL law that is set to take effect July 1, 2021, but that law does not have 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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