Intellectual Property News
On April 29, 2020, the NCAA Board of Governors issued support for rule changes in the organization’s move toward allowing student-athletes to profit from the use of their name, image, and likeness (NIL). Following the recommendations of its Federal and State Legislation Working Group — made up of college and university presidents, commissioners, athletics directors, administrators, and student-athletes — the board’s guidance builds off the principles outlined in its groundbreaking October 2019 decision to adopt changes allowing student-athletes to profit from their NIL. The new guidance further clarifies the NCAA’s intent to adopt rules allowing student-athletes to be compensated for the use of their NIL in third-party endorsements, social media, personal appearances, and other business interests.
In October 2019, the NCAA Board of Governors unanimously voted to allow student-athletes to benefit from the use of their name, image, and likeness while staying true to the organization’s collegiate model. While emphasizing the continued prioritization of student-athletes’ education and the distinction between collegiate and professional opportunities, the board began efforts to modernize the NCAA’s regulations to allow student-athletes the ability to capitalize on income-earning opportunities.
Under the new guidance, the board emphasized that schools will not be allowed to engage in any activities considered “pay for play,” which prohibits colleges and universities from directly compensating their student-athletes for NIL activities. And, while the student-athletes will be permitted to identify themselves by school and sport, they may not make use of school or athletic conference logos and trademarks.
The NCAA will now move into the rule-making process for each of its three athletic divisions. The rules adopted by each division must comport with the following principles and guidelines:
- Ensuring student-athletes are treated similarly to nonathlete students unless a compelling reason exists to differentiate.
- Maintaining the priorities of education and the collegiate experience to provide opportunities for student-athlete success.
- Ensuring rules are transparent, focused and enforceable, and facilitating fair and balanced competition.
- Making clear the distinction between collegiate and professional opportunities.
- Making clear that compensation for athletic performance or participation is impermissible.
- Reaffirming that student-athletes are students first and not employees of the university.
- Enhancing principles of diversity, inclusion and gender equity.
- Protecting the recruiting environment and prohibiting inducements to select, remain at or transfer to a specific institution.
In accordance with these principles, each division must put into place regulations providing “guardrails” in the areas of “pay for play,” school and conference involvement, recruiting activities, booster interaction, and regulation of agents and advisors.
In releasing its new guidelines, the Board of Governors recognized that legal and legislative factors outside of its control could affect the NCAA’s ability to place limitations on student-athletes’ right to profit from the use of their NIL. As a result, the NCAA intends to lobby congressional leaders to adopt the following policies:
- Ensuring federal preemption over state name, image and likeness laws.
- Establishing a “safe harbor” for the NCAA to provide protection against lawsuits filed for name, image and likeness rules.
- Safeguarding the nonemployment status of student-athletes.
- Maintaining the distinction between college athletes and professional athletes.
- Upholding the NCAA’s values, including diversity, inclusion and gender equity.
It is expected that each of the three NCAA divisions will complete their rule-making activities by January 2021, with the rules to take effect for the 2021-2022 academic year.