Posted: August 19th, 2020
By: Gabe Marx
The sports world has gone head-to-head with the NCAA for over a decade, arguing that college athletes should be allowed to benefit fully for their on-field success in the form of compensation for their name, image, and likeness (“NIL”). Despite consistent pushback, both legal and societal, the battle for NIL compensation has been slow developing as the NCAA’s amateurism rules have long prevented athletes from receiving such compensation. In the past month, however, the five largest and most impactful NCAA athletic conferences known as “the Power 5” (Big 10, SEC, Big 12, Pac 12, and ACC) joined forces to produce a new piece of legislation entitled the “Student-Athlete Equity Act of 2020,” once again spurring the debate about the NIL rights of student-athletes.
In the past year, states have begun formulating their own individual legislative measures to give their college athletes more NIL compensation rights. This revolution of sorts started with California’s “Fair Pay To Play Act,” which will legally allow college athletes in the state to receive NIL compensation starting in 2023, directly contradicting current NCAA bylaws. In response, the president of the NCAA, Mark Emmert, stated that the California law effectively creates “a new form of professionalism and a different way of converting students into employees.” With the ever-growing number of states attempting to enact these laws individually, the NCAA has felt the pressure to draft its own NIL legislation that will create an even playing field for all of its student-athletes nationwide.
Enter the Student-Athlete Equity Act of 2020 (“the Act”). The official version is still incomplete, but a summary of the Power 5’s proposed legislation was released last month. The incomplete product was then presented to Congress in a heated Senate Judiciary Committee hearing, which highlighted the controversy surrounding the restrictive nature of the Act.
Those that argue that the Act is too restrictive point to the seemingly innocuous provisions that actually give NCAA universities much more power to limit NIL compensation rights. For example, student-athletes cannot receive NIL compensation until they have completed a semester of college, and the compensation itself cannot be used to induce high school athletes to go to a certain university. Preventing student-athletes from receiving NIL compensation until after a semester of college would restrict student-athletes who want to capitalize on a successful high school career or need the money right away from being compensated. Additionally, if student-athletes who play fall sports get injured during the season, the one-semester restriction could drastically affect the amount of compensation they receive. Universities could also prohibit any NIL compensation that is in violation of “university standards” or conflict with the university’s own sponsorship agreements. This provision is perhaps the most restrictive as the ambiguous language would give universities a wide-reaching ability to prevent any NIL compensation that do not fit their standards, whatever those may be.
While the Act theoretically gives NCAA universities a lot of power to restrict NIL compensation, it does show signs of progress. Given that the NCAA is a 1-billion-dollar-a-year business, and their athletes are currently prohibited from receiving any compensation, the Act rightfully opens the NIL compensation door for NCAA student-athletes. Although they might have to wait a semester, student-athletes would still be able to earn NIL compensation for the rest of the time that they are in college, which could end up amounting to tens of thousands of dollars, if not more depending on the status of the student-athlete. No longer would NCAA student-athletes be forced to resort to the judicial system to enforce their NIL rights.
Whatever your stance is on the ever-controversial topic of paying NCAA student-athletes, the trend is clear: NCAA student-athletes will begin enjoying more extensive rights to NIL compensation than ever before in the near future, and the Student-Athlete Equity Act of 2020 is poised to be another impactful step in that direction.
Gabe Marx is a second-year law student at Wake Forest University School of Law. He holds a Bachelor of Arts in English from Wake Forest University. Upon graduation, Gabe hopes to practice trademark and copyright law.