It appears our November 6 blog post questioning the NCAA’s about face to support name, image, and likeness (NIL) rights after California passed its Fair Pay to Play Act. The previous NCAA Board of Governors’ vote unanimously supported, albeit vaguely, the ability for student-athletes to monetize their name, image, and likeness. The Board of Governors planned to adopt change by January, 2021. California’s Fair Pay to Play will not go into effect until 2023, and NCAA President Mark Emmert met with Congress in Washington, D.C. this week to discuss this issue.
President Emmert has led the NCAA to Washington in search of a defense to spreading legislation across the country. He met with Utah Republican Senator Mitt Romney and Democratic Senator Chris Murphy of Connecticut literally pleading for help. Sens. Romney and Murphy have formed a bipartisan working group to address collegiate sports issues. Emmert and the NCAA seek to stop the spread of state legislation to create uniformity on state laws because the NCAA has member institutions in all 50 states. The NCAA has leverage. Treating institutions differently based on geographic locations based on competing due process rights, commerce clauses and state antitrust law. See e.g., NCAA v. Miller, 10 F.3d. 633 (1993).
North Carolina Congressman Mark Walker recently expressed skepticism that President Emmert sought out Sens. Romney and Murphy while declining to speak with him. Rep. Walker has introduced legislation in North Carolina to allow NCAA student-athletes to profit from their names, images, and likenesses. As recently as 2008, the United States Supreme Court has held that federal law will trump competing state law. Altria Group v. Good, 555 U.S. 70 (2008). Legal ambiguity or lack of express preemption will favor deference to individual state laws, but the NCAA’s intent here appears to be towards express preemption of upcoming state law. They have cited recruiting competitive imbalance, which is laughable given the current culture of NCAA football and basketball including FBI wiretaps proving rampant NCAA basketball recruiting violations. The NCAA further cites uniform licensing concerns which directly impacts video game and apparel licenses. Another practical concern is from a sponsorship angle because many NCAA schools have program wide apparel, uniform, and shoe contracts with companies like Nike and Adidas. Individual sponsorship rights would be in line with American principles, but run contrary to decades of NCAA institutional contractual rights and profitability.