Name, Image, and Likeness: Politics and Pandora’s Box
The evolution of Name, Image, and Likeness rights for collegiate athletes is continuing to be propelled by political forces. The California legislator that introduced the original NIL bill in 2019 has introduced another proposal this past week. The new bill seems to respond to the NCAA’s draft proposal slated for consideration in January 2021. From the USA Today coverage. “It’s good that the NCAA has followed California’s lead, but their proposed rules changes come up short,” Skinner said in a statement. “The NCAA doesn’t appear willing to give student athletes the autonomy and full range of benefits that California law does. My new bill will ensure that California athletes are not unfairly and unnecessarily restricted.” The interesting thing about this story is that it highlights the NIL movement's political and ideological aspects. The original California legislation jump-started the movement, and rather than lobby for changes to the NCAA proposal, advocates are trying to force changes via changes to California law. But the NCAA’s proposed rules changes still leave differences with California’s law — even without Skinner’s new bill. The NCAA proposal would give schools discretion to prevent athletes from having deals that are deemed to conflict with existing school sponsorship arrangements. California’s law now says school contracts cannot prevent athletes from making potentially conflicting NIL deals as long as such deals center around instances “when the athlete is not engaged in official team activities.” Skinner’s bill would add a provision to the law that says schools cannot deny athletes any rights afforded to all other students, except in relation to recruitment. That likely would conflict with several other provisions of the proposed NCAA rules changes. For instance, the NCAA would allow athletes to be paid for giving lessons, but the lesson would have to be paid for by the lesson recipient or by the recipient’s family member. In addition, while the NCAA would allow athletes to sell memorabilia provided by the school, they could not do so until they have finished their collegiate playing eligibility. The proposed legislation is rooted in notions of fairness. The language of prohibiting schools from “denying rights” is telling. It is hard to argue against prohibiting denying rights. Or at least, it doesn’t feel quite right. In addition to “rights” component, the proposal also has a “free market” element. Let the athletes profit based on their talents and market appeal! Collegiate sports are a system with multiple stakeholders – Universities, Media, Staff, Athletes, and Fans. In other words, college sports are a system with each stakeholder dependent on the others. Up until recent times, the balance has been badly skewed. Million-dollar salaries for coaches, Ads, media members. Minuscule stipends for players. The question is whether loosening the constraints on one part of the system is the right corrective action. Or does it unleash all sorts of unintended consequences? I see NO evidence that the NIL advocates are considering what happens next.