Today is NIL Day! How We Got Here and What it Means for College Athletes

Written by Kassandra Ramsey, Esq.

· Name Image Likeness,NIL,Sports Law,College sports,NCAA

Today is NIL day! As of now, college athletes may begin profiting from the commercial use of their name, image, and likeness (NIL) and many already have! This is a historic day in college athletics that has been years in the making. While college athletes are still not getting "pay-for-play," they are gaining an opportunity to reap some of the financial benefits that their labor bestows onto so many others. The college athletics industry is a billion-dollar industry riddled with 6 and 7 figure coaches' and sports administration official's salaries. Similarly, the NCAA enjoys a billion-dollar television broadcasting deal for its March Madness Tournament, while the players were only allowed to receive a scholarship. That is all changing today as college athletes gain the right to enter deals to profit from their NIL and athletic reputation. 

What led to This Historic Day?

One of the catalyst that led to this moment is the landmark O'Bannon v. NCAA case. In that case, former UCLA basketball standout, Ed O'Bannon, sued the NCAA after he saw an avatar of himself in a college sports video game. While the NCAA was continuing to profit from O'Bannon's likeness, O'Bannon did not receive a cent for the use of his likeness in the game. O'Bannon sued the NCAA alleging that the organization’s rules regarding college athletes' NIL violated federal antitrust law.  O'Bannon's case pushed the debate regarding college athletes' rights forward.

It ultimately led California to become the first state to enact a name, image, and likeness law. In 2019, California enacted the "Fair Pay to Play Act." Pursuant to the Act, college athletes would gain the right to profit from their name, image, and likeness and sign with agents. However, the Act was not scheduled to take effect until 2023.  Soon after, other states began drafting and enacting similar laws.  Colorado followed suit, also with a 2023 effective date. Then last summer, Florida completely shook the emerging NIL landscape when the state enacted the "Intercollegiate Athlete Compensation and Rights Act" with a July 1, 2021 effective date. 

As it became increasingly clear that Florida's law was going to effect on July 1, 2021, other states followed suit by enacting NIL laws with the same effective date. The states' action forced the NCAA's hand. The NCAA created a working group to address college athletes' NIL. The NCAA stalled as long as they could. However, yesterday the NCAA finally adopted an interim NIL policy.

The NCAA's Interim NIL Policy

Starting today, college athletes have the opportunity to profit from their NIL. Essentially, the NCAA's policy suspended the NCAA's rules restricting college athletes from profiting from their NIL. Pursuant to the policy, college athletes may:

  • Engage in NIL activities that are consistent with the state law of where the school is located,
  • Athletes attending a school where there is no state NIL law may engage in NIL activity without being in violation of NCAA rules,
  • Individuals can use a professional service provider,
  • College athletes should report the NIL activities in a manner consistent with state law or their respective school or conference requirements. 

In short, college athletes may engage in NIL activities.  However, they are required to follow the rules of the applicable state law. If there is no applicable state law, the athletes should follow the rules of their school or conference.  Accordingly, the NCAA's policy is pretty vague and arguably provides more questions than answers.  One thing that is for certain is that college athletes and their families will need guidance to navigate this new NIL landscape. 

For more information on how to prepare for NIL opportunities download my free e-book" A College Athlete's Guide to Preparing for Name, Image, and Likeness." Also, for more on college athletes' name, image, and likeness rights follow me on Twitter @esquire_coach and on Instagram @the_esquirecoach. To receive updates from The Esquire Coach Blog directly to your email please subscribe below.