Professor Maureen Weston, "Off the Guardrails: Opportunities and Caveats for Name Image Likeness and the [Student] Athlete Influencer" -- Texas A and M Law Journal (forthcoming)

Professor Maureen A. Weston's article, "Off the Guardrails: Opportunities and Caveats for Name Image Likeness and the [Student] Athlete Influencer," (SSRN) will be published in the Texas A&M Law Journal (forthcoming 2024). The article examines the developments and implications resulting from the changing collegiate sports landscape, what may be hidden costs of name, image, and likeness rights, and how to fix a system that might already be broken.

Abstract of "Off the Guardrails: Opportunities and Caveats for Name Image Likeness and the [Student] Athlete Influencer"

The National Collegiate Athletic Association (“NCAA”) is a membership association serving as the governing body for intercollegiate athletics. The NCAA was founded in 1906 with the purpose “to protect young people from the dangerous and exploitive athletics practices of the time.” Among its many rules, the NCAA’s bedrock amateurism requirement used to be fairly straightforward, albeit controversial. Athletes who competed for their respective colleges and universities were students, not professionals. Thus, student-athletes could not be paid, accept money or “extra benefits” associated in any way with their athleticism or their schools, or have agents. The rule was to protect student-athletes against commercial exploitation, at least when it came to the athletes profiting, and to promote integration of the student-athletes within the general student body.

While the NCAA continues to maintain this traditional amateurism structure for intercollegiate athletics, the foundation has become precarious, and the distinctions have blurred with the advent of name, image, and likeness (“NIL”) state legislation. Although litigation challenging the NCAA’s various amateurism rules had been brewing in the courts for over a decade, state legislatures, starting with California in 2019, forged ahead with enacting legislation prohibiting schools from penalizing student-athletes for monetizing their NIL/publicity rights. While other states followed in adopting NIL legislation, these laws had varying scopes and effective dates, starting in 2023, to provide time for programs to adjust to the new laws. Yet any delays on NIL laws imploded shortly after the United States Supreme Court released its June 30, 2021 decision in National Collegiate Athletic Association v. Alston. Although Alston determined that the NCAA’s limits on education-related benefits to college athletes violated federal antitrust laws, and coincidentally had nothing to do with NIL rights, the Court’s excoriating treatment of NCAA policies and practices evident in the opinion and in oral argument was seen as the green light to unleash NIL rights.

Florida became the first state to expedite its NIL law’s effective date to July 1, 2021. On this same date, the NCAA Board of Directors also relented, agreeing to suspend its rules prohibiting NIL and adopting an “Interim NIL Policy” providing that student-athletes will be allowed to profit off NIL starting 2021 “if consistent with the collegiate model” and the law of the state where the school is located. Facing protracted and ongoing litigation, the NCAA Board realized it too had to “transform” in order to survive in this new era of college sports.

In a relatively short time span, the collegiate sports commercial landscape has indeed changed. While endorsement opportunities for athletes have opened, college sports program management and recruitment and the role of outside third parties, including boosters, marketing agents, sponsors, and “collectives,” have likewise transformed. In most states, college athletes (with the exception of international athletes) can now profit from their NIL and enter endorsement deals, both individually and collectively. Activities and contracts that were long prohibited and grounds for sanction are now solicited and celebrated. While Colorado football player Jeremy Bloom had to choose between playing football or foregoing endorsements needed to sustain his world championship ski competition in 2009, a decade and change later, Colorado star quarterback Shedeur Sanders drives a $200K Mercedes Maybach onto campus, with an estimated NIL valuation of $5 million,” and he is expected to earn $10 million over his college career. Thousands of NIL deals, at varied levels along the financial and product spectrum, including cash, cars, housing, swag, and free meals, are now offered to student-athletes for use of their NIL. An entirely new industry has emerged to service and likewise profit from the student-athlete NIL market, including deal agents, collectives, social media and influencer advisors, marketing agents, established sport/entertainment agencies, and yes, lawyers. While the NCAA rules still prohibit pay-for-play and require that NIL deals involve fair market value and some quid pro quo arrangement, boosters, marketing agents, and collectives are heavily ensconced in facilitating NIL deals with the athletes. While the schools themselves technically cannot be involved in the NIL deals, every school must now address NIL as part of their sports administration program. As Kentucky Coach John Calipari acknowledged, “’[p]eople are looking to us’ on how to handle NIL deals.” Schools are imploring boosters to provide NIL deals, forming collectives, and using NIL institutional support as a de facto recruiting magnet as well as establishing their own institution NIL centers.

The NIL era is largely regarded as a positive breakthrough in college sports. This brave new college athlete NIL industry offers exciting opportunities and benefits for the athlete/influencer/entrepreneur/student. And while this new era in college sports is getting very lucrative for some athletes, it also attracts a whole new cast of largely unregulated boosters, agents, and collectives, and significantly alters major college athletic programs and administration. The impacts of the NIL industry on revenue and non-revenue sports, the athletes, recruiting, and even Title IX and student wellness are yet to be fully determined. This paper examines the developments and implications resulting from the changing collegiate sports landscape, what may be hidden costs of NIL, and how to fix a system that might already be broken.