Earlier today, the State of Georgia enacted HB 617, which affirmatively permits college athletes attending schools in that state to receive financial compensation for use of their name, image, or likeness (“NIL”). The new law takes effect on July 1, 2021.
In a nationwide environment in which the NCAA broadly prohibits almost every form of direct financial compensation to so-called “student athletes,” emerging state laws like Georgia’s HB 617– other states joining in this initial wave include Alabama, Florida, Mississippi, and New Mexico– offer a commonsense middle ground on compensation that’s short of revenue sharing with school athletic departments and would seem to place schools in those states at a competitive recruiting advantage, at least in the short term.
The NCAA’s initial response to what appears to be a broadside attack on one of the governing body’s longstanding, core tenets was surprising. Jere Morehead, a member of the NCAA Board of Governors “said he would expect the NCAA would allow ‘accommodations,’ to be made for athletes in states with NIL rules.” Morehead also is the president of the University of Georgia, so this may not be the NCAA’s official position on state NIL laws. If the “accommodations” comment reflects in any way the thinking within NCAA leadership, though, it is extremely illuminating.
It’s easy to forget that athletics organizing entities, and especially in light of their popularity and rhetoric the NCAA, NFL, and MLB, do not act and regulate their respective sports with the force of actual law. (In fact, they in some sense operate outside the law thanks to formal and informal antitrust exemptions.) During baseball’s meltdown over Barry Bonds’ superhuman ascension in the early aughts, you could be forgiven if you weren’t sure whether steroids were illegal illegal or merely MLB “illegal.” The NFL also has done an effective job of coopting this officious language into its in-sport vernacular as well (e.g., “illegal touching” having quite different meanings on and off the field). All of these groups have “committees” that issue “rules” and “regulations” just like real government agencies!
For the degree to which these private sports administrative entities control the behavior of their subject players as well as the general public’s perception of the goings-ons in and around their games, it’s sort of amazing that states could just opt out of a major NCAA prohibition and the NCAA’s response is to roll over and take it. Not that passing legislation is easy, but is this all that was needed all along?
If the NCAA’s “accommodations” response proves real, it could carry widespread consequences for the enforceability of other NCAA rules. Suddenly, the implication is that the NCAA will yield wherever its policies conflict with state law. Does this mean an end to the NCAA’s punishment of athletes who use marijuana in states that have authorized its use? What about sports wagering? There of course are other actual legal factors at work with those two examples (the persistent federal marijuana prohibition and common legal provisions restricting wagering by contest participants), and it’s unclear whether an affirmative legalization is a prerequisite (e.g., was Todd Gurley prohibited from being paid for autographed helmets as a matter of Georgia law?) . Still, Morehead’s suggestion that the NCAA will quietly accede in this area implies that there actually may not be much brute behind the bluster out of Indianapolis. If that’s the case, it’s a welcome– if still annoyingly executed– development that should further hasten the loosening of the NCAA’s iron fist over those whose efforts generate millions of dollars in administrative salaries.
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