With No National Standard, States Scramble to Allow College Athlete Endorsements

By: - May 28, 2021 12:00 am

The University of Michigan’s Isaiah Livers wears a T-shirt that reads “#NotNCAAProperty” during a tournament game in March. Livers has advocated for amateurism rules to be changed so that athletes can market themselves. Robert Franklin/The Associated Press

In just weeks, college athletes in five states are poised to profit from endorsements, sponsorships and autographs.

As the July 1 state-picked start date approaches, lawmakers across the country are scrambling to pass similar legislation—known as name, image and likeness (NIL) laws—fearful that schools in rival states will gain a massive recruiting advantage by allowing athletes to market themselves.

Another 10 states have such laws set to take effect in coming years, and legislators in California are considering moving up the start date of their previously passed legislation. Advocates say the changes are a long-overdue way of giving athletes, many of whom are people of color, a share in the massive profits they help bring to the schools they play for.

The lack of a national standard has left athletes and schools with a state-by-state patchwork of varying rules. Thirteen states are still considering proposals, with some on the verge of passage. The uneven rules could have massive implications for the multi-billion-dollar college sports industry, and coaches are warning that they will lose top recruits if their states don’t get on board.

“It really just is a mess at this point,” said Maddie Salamone, a former college lacrosse player who chaired the Division I Student-Athlete Advisory Committee, which provides input on proposed NCAA legislation, and now works as an attorney. “It’s just a little over a month away, but it’s still pretty unclear what is going to happen.”

The NCAA has said its Division I Council is expected to issue new rules on the topic during its late June meeting. But athlete advocates expect those rules to restrict players’ earnings more than state laws and to add to the confusion over which guidelines athletes are bound to follow.

The state laws apply to athletes at all levels of college sports, not just the NCAA. The National Association of Intercollegiate Athletics, whose members are primarily small colleges, passed its own NIL legislation in 2020, allowing athletes at member schools to begin marketing themselves.

Many legislators expected congressional or collegiate leaders to set nationwide guidelines before state laws took effect.

“Everyone was hopeful that the NCAA or Congress would arrive at a solution before [July 1],” said Andy Humes, deputy athletic director for administration at the University of Missouri. “What you’re seeing now is the realization that that’s more and more unlikely. States are acting because time is running out.”

In some states, though, lawmakers are hesitant to change the existing model of amateurism, while other states—including several that lack powerhouse athletic programs—have been slow to address the issue.

‘Arms Race’

In 2019, California became the first state to pass NIL legislation, permitting college athletes to market themselves and overriding longstanding NCAA rules that deemed such activities a violation of amateur status. California’s law is set to take effect in 2023, but Florida responded by passing a law with an earlier launch date: July 1, 2021. Three of Florida’s rivals in the sports-crazed Southeastern Conference—Alabama, Georgia, Mississippi—quickly enacted their own July 1 targets, along with New Mexico.

“The states that have moved to July 1, it’s without a doubt a bit of a [recruiting] advantage,” said Florida state Rep. Chip LaMarca, a Republican who introduced that state’s law. “The schools that were somewhat skeptical of it came back to us and said, ‘We have to move forward with this.’”

LaMarca said the law is a basic fairness issue, noting that a computer science student is free to make money for developing a popular app. Louisiana state Sen. Patrick Connick, a Republican who is pushing his own proposal, made a similar argument.

“These schools make millions of dollars off of these athletes’ talents, and it’s time for athletes to have the opportunity to reap something from their efforts,” he said.

Connick also acknowledged that the bill, which he expects to pass and take effect immediately, will keep Louisiana schools competitive with neighboring rivals. Louisiana State University’s Stephanie Rempe, the executive deputy director of athletics, urged lawmakers to support the bill.

“We want to make sure the bill passes, so we aren’t at a disadvantage for recruiting, but also so the kids that are here now [have opportunities],” she said in an interview.

While lawmakers say they’re focused on giving athletes opportunities, some observers think the recent flurry of bills is more motivated by fears that flagship football and basketball programs could face an exodus of recruits.

“It has become a competitive arms race,” said Julie Sommer, a former college swimmer who now works as an attorney and tracks NIL bills with the Drake Group, which advocates for changes in college sports. “They’re eyeing each other’s bills, laws and implementation dates.”

Some lawmakers have acknowledged the competition explicitly. Texas state Sen. Brandon Creighton, a Republican who was once a skeptic of NIL rights, has sponsored a bill that would take effect July 1.

“It is clear that for Texas to remain a powerhouse in collegiate athletics, we need to pass a Texas plan,” he said in a news release when the bill passed the Senate. “Texas risks losing our best recruits as they seek opportunities elsewhere.”

Creighton’s office said the bill is expected to pass the full legislature soon.

Who Will Benefit?

Although many NIL bills have passed with large bipartisan majorities, some lawmakers are still wary of changing the rules of amateurism. South Carolina state Sen. Chip Campsen, a Republican, fought the bill that eventually passed the legislature in April.

“This is about helping the elite superstars earn millions of dollars,” he said. “There’s going to be the haves and the have-nots, and I think that destroys amateur athletics. It will destroy the sense of team.”

Campsen proposed an amendment that would have let schools pay all athletes for up to 30 hours a week at one and a half times the minimum wage, a measure that failed.

In North Carolina, lawmakers have not advanced the NIL proposal sponsored by state Sen. Wiley Nickel, a Democrat. Nickel noted that marquee football and basketball programs bring in millions in revenue from the success of Black athletes, but it’s largely White coaches and administrators who see the profits.

“At its core it’s a racial issue,” he said. “The person who’s doing the work should make the money, not just athletic directors and coaches.”

While Nickel’s colleagues do not seem to share his conviction on the issue, he thinks they may be convinced if the vaunted Duke and North Carolina basketball programs start losing recruits.

“It’s really going to take a few athletes changing schools for people to start to take notice,” he said.

Lawmakers and school officials think the changes will benefit most athletes in some way, allowing them to coach at summer camps or advertise for a hometown grocery store. Connick, the Louisiana lawmaker, noted that LSU gymnast Olivia Dunne has nearly 4 million followers on TikTok, which could give her massive earning potential as a social media influencer.

Salamone, the former college lacrosse player, said she would have benefited from NIL rights when she was an athlete. 

“It’s so drilled into your head that anything that could be construed as a benefit you receive because you’re an athlete, you’re afraid of losing your eligibility,” she said. “Now, you’re going to see athletes using their creative sides, collaborating with each other and using talents that have been forced to become dormant while they’re athletes.”

No National Standard

States are scrambling because the NCAA has yet to issue national guidelines, even though it formed a committee in 2019 to study potential rule changes. Many observers think the NCAA’s delay is due to a pending U.S. Supreme Court case that could undermine the organization’s power to control the amateur status of athletes.

In a news release, the NCAA said its Division I Council “is expected to act on legislative proposals regarding name, image and likeness” at its June 22-23 meeting. Observers say any NCAA guidelines will likely be more restrictive than state laws, which could create a confounding situation for athletes.

“It does look like in July we’ll have that strange space with several state laws in effect and the NCAA proposing their rules, and tension and conflict between NCAA rules and state laws,” said Sommer, the Drake Group expert. “Will those athletes who are violating the NCAA rules sue the NCAA? Will the NCAA find them ineligible?”

Meanwhile, several competing proposals are being debated in Congress, some of which call for more sweeping changes to college athletics. Two lawmakers who have been active on the issue, Washington U.S. Sen. Maria Cantwell, a Democrat, and Ohio U.S. Rep. Anthony Gonzalez, a Republican, did not respond to requests for comment.

State lawmakers and school officials say federal policy would be the best way to resolve the issue, but they have little confidence that Congress will act soon.

Ramogi Huma, executive director of the National College Players Association, an athletes’ rights group, fears the NCAA will lobby Congress to pass a bill that’s more restrictive to athletes than state laws, undoing some of the progress that has been made.

“The NCAA has had plenty of time to act by now,” he said. “They could just say that any NCAA rule that conflicts with state laws on name, image and likeness will be waived for this year.”

Some state laws will require athletes to disclose any deals they strike. Others will prevent them from endorsing products such as alcohol and tobacco. Some will mandate financial literacy training. Georgia’s law will allow schools to take up to 75% of a student’s earnings and place it in a pool for all athletes at the school to receive after graduation.

Some schools were readying for change before bills were passed. Late last year, the University of Missouri partnered with Opendorse, an athlete marketing platform, to provide education and technology tools for students. Missouri legislators passed an NIL bill earlier this month.

“We’ve been preparing for this for a long time without any indication of whether we would have a state law in effect,” said Humes, the school athletic official. “We needed to be as proactive as we could without knowing the outcome.”

Still, Humes and others say many questions remain unanswered. Will students on financial need grants lose their funding if they earn money from endorsements? Will endorsements violate student visas that limit international athletes to on-campus work? What will happen to students with endorsement deals who transfer to a state without NIL rights?

For now, it appears that schools and athletes will be left to navigate those questions through trial-and-error.

“Everyone is scrambling, and schools are trying to figure out what measures they need to put in place,” Salamone said. “It’s going to make a lot of athletes nervous. There needs to be some sort of federal regulation.”

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Alex Brown
Alex Brown

Based in Seattle, Alex Brown covers environmental issues for Stateline. Prior to joining Stateline, Brown wrote for The Chronicle in Lewis County, Washington state.