VI. State Name, Image, and Likeness Laws
Several consistent themes define the evolution of state-based NIL laws and the NCAA and Power 5’s response to them.
First, most are closely aligned with the NCAA’s and Power 5’s amateurism-based values through stringent amateurism-based “guardrails” that make meaningful NIL compensation almost impossible.
Second, as with athlete-agent laws, the NCAA and Power 5 disingenuously claim they are motivated by promoting athlete interests when their true motivation is to regulate the labor force in Power 5 football and men’s basketball.
Third, the NCAA and Power 5 presume that market participants are “bad actors” with nefarious motives to justify regulating the NIL market.
Fourth, as with state athlete-agent laws and SPARTA, state regulatory authorities have not been inclined to enforce their NIL laws.
Fifth, due to a less regulated NIL marketplace under the NCAA’s “Interim Policy” on NIL, states have quickly scrapped their values-based state laws to operate in the more permissive “Interim Policy” regulatory space.
States now seem more concerned about competitive advantage-disadvantage in recruiting than preserving the “integrity” of college sports through amateurism-based NIL “guardrails.”
A. California’s SB 206 (Fair Pay to Play Act) and the NCAA’s Response
In September 2019, the California state legislature enacted SB 206, the nation’s first name, image, and likeness law.
SB 206 was, in many ways, a response to the failure of the O’Bannon suit (2009 - 2016) to deliver meaningful NIL compensation for college athletes.
Athletes’ rights advocates have hailed SB 206 as a seminal moment in advancing athlete interests in college sports. However, the NCAA, Power 5, and other in-system beneficiaries have portrayed SB 206 as an existential threat to college sports.
It was neither.
While SB 206 was progressive in the sense that it launched a meaningful discussion on “NIL compensation,” the NCAA was successful in shaping, neutralizing, and delaying it.
The Timeline below shows the evolution of SB 206 from its introduction on February 4th, 2019, to its enactment on September 30, 2019. In that timeframe, the California Senate or Assembly amended the bill eight times.
Most of these amendments brought the bill farther from its original purpose and closer to NCAA amateurism-based values.
The final product posed no immediate threat to the NCAA and largely conformed to principles of amateurism and the “student-athlete.”
Nearly every state NIL law or executive order that followed SB 206—at least until the NCAA adopted the “Interim Policy” on June 30, 2021—was more restrictive than SB 206 and included amateurism-based limitations or “guardrails” insisted upon by the NCAA and Power 5.
Nevertheless, the NCAA and Power 5 used SB 206 and a federal bill introduced in Congress on March 7th, 2019, to justify the most audacious regulatory power grab in American sports history.
In this sense, SB 206 is more significant for the NCAA’s cynical use of it to seek federal protections and immunities than its benefit to athletes or its threat to the amateurism model.
1. SB 206 Timeline (with contextual notes)
2019 (February 4th)
California State Senators Nancy Skinner and Steven Bradford introduced SB 206, “The Fair Pay to Play Act.” The initial version of SB 206 permitted college athletes in California the opportunity to earn money from their NIL with few restrictions.
SB 206 was elegant in its simplicity and its brevity.
It captured the financial, educational, and racial inequities in the big-time college sports business model in 500 words (Section 1).
SB 206 was originally titled and came to be known as the “Fair Pay to Play Act.”
The operative provision (Section 2) had only three requirements: (1) California colleges and universities were prohibited from upholding any limitation that prevents an athlete from participating in college sports because that athlete receives money for the use of their NIL, (2) this prohibition explicitly applied to the NCAA and conferences, (3) the cost of attendance component of the athletics scholarship was not deemed compensation under the Act.
Presumably, the law was to go into effect upon enactment.
2019 (March 11th)
The CA Senate amended SB 206 to strengthen equity-based factual recitals emphasizing college athletes' athletic time commitments that interfere with their academic work and performance. The amendment also permitted athletes to obtain legal representation “relating to the student’s participation in intercollegiate athletics.”
2019 (March 14th)
Rep. Mark Walker (R-NC) introduced in the House of Representatives the “Student-Athlete Equity Act.” Walker’s bill would strip the NCAA of its nonprofit status unless it provided meaningful NIL benefits for college athletes. The proposal had bipartisan, biracial sponsorship.
The NCAA aggressively pushed back against the bill’s momentum. Rep. Walker tried to meet with NCAA President Mark Emmert but was rebuffed.
2019 (March 25th)
The CA Senate amended SB 206 to make minor changes to clarify that the law applies to private colleges and universities as well as state universities.
2019 (April 10th)
The CA Senate added three crucial amendments that align with NCAA amateurism-based values: (1) CA schools are prohibited from paying athlete NIL compensation directly, (2) professionals retained by athletes must comply with CA’s athlete agent laws, and (3) athlete agents representing CA athletes must comply with SPARTA.
Under these amendments, athletes can only enter NIL deals with third parties, not universities. This limitation protects the NCAA’s conceptualization of amateurism and the “student-athlete.”
The invocation of CA’s athlete agent laws and SPARTA incorporates the amateurism values explicit in those laws and plays into the NCAA’s “bad actor” narratives.
2019 (May 14th)
NCAA Board of Governors announced the formation of the Federal and State Legislation Working Group (Working Group). The Working Group was comprised of NCAA insiders and tasked with exploring “whether the Association should maintain its position in opposition to the legislation [SB 206 and the Mark Walker federal bill] and/or work to develop a process whereby a student-athlete’s NIL could be monetized in a fashion that would be consistent with the NCAA’s core values, mission, and principles.”
The NCAA BOG “directed” the Working Group to follow five foundational principles:
a. “Consider whether modifications to NCAA rules, policies, and practices should be made to allow for NIL payments.” (emphasis added)
b. NIL payments cannot be compensation for athletics participation.
c. NIL payments must be “tethered to education.”
d. Examine whether any additional NIL benefits beyond those provided by the court in O’Bannon (the full cost of attendance stipend) “would be achievable and enforceable without undermining the distinction between professional sports and amateur sports.”
e. “Preserve the ability to host fair interstate competitions and national championships.”
The BOG reiterated that the Working Group’s inquiry may include “a rationale as to whether this [NIL compensation] would be plausible in keeping with the Association’s mission.”
The BOG’s cautionary and conditional charge to the Working Group became the lens through which the NCAA approached the possibility of “NIL compensation.”
The Working Group became the conduit through which the NCAA—in conjunction with the Power 5—commandeered the NIL debate and framed it around amateurism-based “guardrails” that would make it all but impossible for athletes to have meaningful NIL rights or compensation.
Most importantly, false promises of “NIL compensation” were the NCAA and Power 5’s justification for seeking sweeping federal protections and immunities from Congress to eliminate all external threats to its regulatory authority and business model.
2019 (May 17th)
Just three days after the announcement of the Working Group, the CA Senate added another crucial limitation to SB 206: it will not become effective until January 1st, 2023. SB 206 was then sent to the CA Assembly for consideration.
2019 (June 17th)
NCAA President Mark Emmert sent a letter to committee chairs in the CA Assembly (copy to Nancy Skinner) asking them to “postpone further consideration of Senate Bill 206…while we review our rules.” Emmert’s letter is an ode to amateurism and the specter of “unintended consequences” if the bill was passed “as written.” Emmert emphasized that pay for athletics participation and athletes as employees were deal breakers, and any NIL market must maintain “the clear line of demarcation between professional and amateur sports.”
Emmert also emphasized the creation of the Working Group and its study “of potential processes whereby a student-athlete’s NIL could be monetized in a fashion that would be consistent with the NCAA’s core values, mission, and principles.” (emphasis added)
2019 (June 20th)
After Emmert’s letter, the CA Assembly fundamentally altered the purpose of SB 206, striking every equity-based factual recitation contained in Section 1.
Additionally, the Assembly’s new Section 1 further elaborated on the justification for moving the bill’s effective date to January 1st, 2023:
“SECTION 1 (a) (1)It is the intent of the Legislature to monitor the National Collegiate Athletic Association’s (NCAA) working group created in May 2019 to examine issues relating to the use of a student’s name, image, and likeness and revisit the issue to implement significant findings and recommendations of the NCAA working group in furtherance of the statutory changes proposed by this act.
(2) It is the intent of the Legislature to continue to develop policies to ensure appropriate protections are in place to avoid exploitation of student-athletes, colleges, and universities.” (emphasis added)
2019 (July 11th)
The CA Assembly struck at the very heart of SB 206’s original purpose by deleting all references to the “Fair Pay to Play Act.”
2019 (September 3rd)
The CA Assembly amended SB 206 to include two crucial NCAA-friendly “guardrails” that protect institutional interests. First, the law prohibited athletes from entering a NIL contract if it “conflicts with a provision of the athlete’s team contract.” Second, athletes must disclose their NIL contracts to their universities.
2019 (September 11th)
The NCAA Board of Governors sent California Governor Gavin Newsome a letter advising him not to sign SB 206 into law. The BOG suggested the NCAA intended to declare NCAA athletes in California ineligible for competition. The BOG claimed that SB 206 poses an existential threat to amateurism and emphasizes the negative consequences of potentially having 50 different NIL standards.
The BOG also made a veiled threat of litigation, saying, “We urge the state of California to reconsider this harmful and, we believe, unconstitutional bill and hope the state will be a constructive partner in our efforts to develop a fair name, image and likeness approach for all 50 states.” (emphasis added)
The BOG letter set the stage for the NCAA to sue California under a “dormant commerce clause” theory under the US Constitution’s Commerce Clause. The NCAA would argue that SB 206 places an impermissible burden on interstate commerce because it creates an unfair commercial advantage for California schools relative to other states.
If the NCAA prevailed in a dormant commerce clause suit, it would have the authority to regulate NIL at the national level and eliminate states from the regulatory field.
On March 9th, 2020, during an oral argument in Alston in the 9th Circuit, NCAA attorney Seth Waxman renewed the NCAA’s dormant commerce clause threat in response to a judge’s question.
At a June 9th, 2021, Senate hearing in which the NCAA sought last-minute preemption of state NIL laws before the July 1st, 2021, deadline Senator Brian Schatz (D-HI) pressed Mark Emmert to say whether the NCAA was prepared to file a dormant commerce clause lawsuit before July 1st. Emmert dodged the question without categorically ruling it out.
2019 (September 12th)
The California State Assembly unanimously passed SB 206 with its new NCAA-friendly features, including the effective date of January 1st, 2023.
2019 (September 30th)
California Governor Gavin Newsome signed SB 206 into law. The NCAA issued a press release on its website: “NCAA statement on Gov. Newsome signing SB 206,” which says, “We will consider next steps in California while our members move forward with ongoing efforts to make adjustments to NCAA name, image, and likeness rules that are both realistic in modern society and tied to higher education.
2. The Consequences of SB 206
SB 206 played a substantial role in setting off a chain of events that may influence the future of college sports regulation and athletes’ rights. Even though the NCAA and Power 5 successfully neutralized SB 206, the law is still held up as the gold standard threat to the NCAA’s regulatory authority and the college sports business model.
Following SB 206’s enactment, the NCAA and Power 5 began formulating a multi-faceted, sophisticated strategy to eliminate state legislatures, federal courts, and federal administrative agencies from the college sports regulatory field.
As discussed in more detail below (and in the Congress Tab in the Explore menu), the NCAA and Power 5 seek three extraordinary federal protections and immunities to eradicate all threats to their regulatory supremacy: (1) antitrust immunity (federal courts), (2) prohibition on athletes as employees (federal administrative agencies, namely the National Labor Relations Board), and (3) federal preemption of state laws (state legislatures).
In this State Legislatures Tab, we focus primarily on the NCAA’s and Power 5’s efforts to neutralize state legislatures (or wipe them off the regulatory map entirely) under principles of “uniformity.” The uniformity themes support the NCAA’s and Power 5’s quest for federal preemption and are discussed in detail below (subheading 3, “Uniformity 2.0”).
The NCAA’s and Power 5’s uniformity/preemption arguments appear to have gained some bipartisan traction in Congress.
To understand the context for the NCAA’s and Power 5’s campaign to eliminate state legislatures from the regulatory field through “uniformity,’ it’s important to first analyze the NCAA’s false promises of voluntary NIL rules changes, which the NCAA, Power 5 and institutional stakeholders have used to distract stakeholders and the public from their Congressional campaign.
3. The NCAA Working Group’s Claims of “Voluntary” Rules Changes on NIL and Its’ Backchannel Strategy to Obtain Federal Protections and Immunities from Congress
The Timeline exposes the NCAA’s and Power 5’s takeover of the NIL debate and the use of NIL “compensation” promises as a Trojan Horse for protective federal legislation from Congress.
2019 (October 23rd)
The NCAA Working Group released its “interim report” on NIL. The Interim Report contains vague amateurism-based principles presented as integrity-based “guardrails” necessary for any NIL rule changes. These threshold limitations make it nearly impossible for athletes to receive meaningful NIL compensation.
The Working Group justifies its “guardrails” in part on the belief that “…the commercial value of a student-athlete’s name, image, or likeness may be derived largely through the student-athlete’s association with his or her school and/or participation in athletics.” The report uses subtle conditional language (“potential changes,” “possible NCAA legislation,” “regulatory framework”) as escape hatches to actual rule changes.
Importantly, the Report identifies the need to “instruct NCAA leadership on engagement with state and federal lawmakers,” which obliquely foreshadows the coming campaign for protective federal legislation that would give the NCAA the authority to do nothing on NIL.
The Report emphasizes national uniformity in NIL rulemaking but says nothing specifically about federal preemption. It includes references to SB 206 and the magic dicta from the Board of Regents case to bolster its role as the sole regulator in college sports.
2019 (October 29th)
At its October 29, 2019, meeting, the NCAA Board of Governors adopted the recommendations of the Working Group’s October 23 Interim Report. It proclaimed a desire to “modernize” NCAA rules consistent with the “collegiate model” through the suggested “guardrails.”
The BOG’s minutes do not mention congressional engagement.
The NCAA issued a simultaneous press release suggesting it was moving toward actual NIL changes. The Wall Street Journal (October 31, 2019) declared on its front page, “NCAA Alters Rules On Athlete Income.” Other media outlets publish similar, inaccurate narratives.
The NCAA’s press release says, “The board asked each division to create any new rules beginning immediately, but no later than January 2021.”
2019 (October 29th)
On the same day, the NCAA Division I Student-Athlete Advisory Committee (SAAC) issued an open letter on proposed NIL changes titled “We are the 100%.” The SAAC signatories were comprised substantially of non-revenue sports athletes. The letter channeled what would become the NCAA’s and Power 5’s key talking points in their congressional campaign for protective federal legislation:
“No one is talking about how proposals for name, image, and likeness reform — both state and federal — will affect sports other than football and men’s basketball or a handful of elite student-athletes in other sports. No one is talking about what the proposals will do for limited resource institutions, historically black colleges and universities, or international students…[w] while name, image, and likeness compensation carry many benefits, there are a plethora of potential unintended consequences that will inevitably erupt unless regulations are put into place to prevent them. Some of those consequences include unfair recruiting and competitive advantages, difficulty monitoring compensation and ethics, inequitable treatment of female athletes, and exploitation of athletes by professional and commercial enterprises. With the potential loss of revenue to athletics departments, the biggest impact could be on scholarships for equivalency sports, which are predominantly women’s teams.”
The SAAC letter created the illusion of consensus among college athletes that an unregulated NIL market posed an existential threat to athletes who are not Power 5 football and men’s basketball players. This divisive rhetoric received favorable national press coverage.
2019 (November 16th)
Two weeks later, the NCAA Board of Governors Executive Committee quietly directed the formation of a Working Group subcommittee to report to the NCAA President and the BOG Chair “on potential assistance that the Association should seek from Congress to support any efforts to modernize the rules in NCAA sports while maintaining the latitude that the Association needs to further its mission to oversee and promote intercollegiate athletics on a national scale.”
The subcommittee was ultimately created under the name “Presidential Subcommittee on Congressional Action” (PSCA). The NCAA did not announce the existence of the PSCA until the Working Group’s Final Report in April 2020 (see the image below from the Working Group’s April 17th, 2020, Final Report).
2019 (December 5th)
Senators Chris Murphy (D-CT), Cory Booker (D-NJ), Mitt Romney (R-UT), Marco Rubio (R-FL), and David Perdue (R-GA) announced the formation of a bipartisan “working group” on athlete compensation.
The working group acknowledged inequities in the college sports business model and appeared supportive of athlete-focused legislation.
2019 (December 6th)
The NCAA issued on its website “NCAA statement on Senate working group.” The statement reads, “The NCAA, its member schools, and conferences are committed to enhancing our rules while providing the best educational and athletic experience for our student-athletes. We know that continuing our modernization of rules will require some level of federal assistance, and we look forward to working with federal legislators as we drive improvements for the next decade.” (emphasis added).
2019 (December 10th)
Power 5 conference commissioners and university presidents/chancellors held a secret teleconference to devise their congressional and public relations strategies.
There were 15 attendees, all men.
The participants cited the bipartisan Senate working group on potential athlete-friendly federal legislation as the precipitating factor for the meeting (“If we want to have influence, all major players in college sports and stakeholders need to be coordinated. Last week’s announcement by a group of bi-partisan Senators emphasizes this fact…[a]ll of us have spoken with different Senators and members of Congress interested in this issue, and with the formation last week of the bi-partisan group of Senators, we believe the time is now to get our act together.”).
The Power 5 leaders articulated their congressional playbook, emphasizing (1) the importance of controlling the NIL narrative in Congress and in public discourse and (2) the importance of not branding congressional engagement as a Power 5 initiative.
This meeting is the genesis for the Power 5’s and NCAA’s campaign for federal protections and immunities (preemption, antitrust immunity, no employee status for athletes) that will eliminate external regulatory threats and end the athletes’ rights movement.
Sports journalist Andy Wittry obtained the meeting documents via public records requests. The mainstream media ignored the story.
The teleconference highlights that Power 5 interests drove the congressional campaign.
No other interests—Group of 5 conferences, Division I FCS, non-football Division I, Division II, Division III—participated or had input into the Power 5’s secret congressional strategy.
Note: “Autonomy 5” or “A5” in the images below means the Power 5.
2020 (February 11th)
The Power 5 and NCAA launched their congressional campaign in earnest with the first of twelve hearings (over four years) that would be conducted ostensibly on NIL-related issues. The hearing was held in the Senate Commerce Subcommittee on Manufacturing, Trade, and Consumer Protection (“Name, Image, and Likeness: The State of Intercollegiate Athlete Compensation”) chaired by Sen. Jerry Moran (R-KS). The Commerce Committee has original jurisdiction over sports matters.
Six witnesses testified. Five were NCAA/Power 5 loyalists (including NCAA President Mark Emmert, Big 12 Conference Commissioner Bob Bowlsby, Kansas University President Doug Girod, and House member Anthony Gonzalez [R-OH]).
These witnesses flooded the record with NCAA/Power 5-friendly talking points. Only one witness (National College Players Association Director Ramogi Huma) represented athlete interests.
Emmert told the Subcommittee, “We need your help,” but was purposefully vague on what exactly that “help” might entail.
This is a crucial event in the timeline because it offered the NCAA and Power 5 the opportunity to control the NIL “debate” through amateurism narratives and scare tactics (“bad actors” in the NIL space) that defined congressional involvement going forward.
At this point, the NCAA and Power 5 went on offense to eliminate in one fell swoop all external threats (state legislatures, federal courts, federal administrative agencies, and free markets) to their regulatory authority, business model, and revenue streams.
Through this hearing, the NCAA and Power 5 successfully took over the NIL debate, defined its terms, and insinuated the mythology of college sports—amateurism, the “student-athlete,’ and the “collegiate model”—into Congress’ thinking on NIL-related legislation.
The advantage of framing the issues, narratives, and language in any engagement with Congress cannot be underestimated.
From the February hearing forward, every discussion on “NIL compensation” and potential Congressional action—including ostensibly athlete-friendly proposals—were built around the amateurism-based assumptions cemented in by the NCAA and Power 5 (and their lobbyists) from the very beginning.
2020 (April 17th)
On April 17th, 2020, during COVID lockdowns, the NCAA Working Group issued its Final Report. For the first time, the NCAA disclosed the purpose and work of the Presidential Subcommittee on Congressional Action.
The section devoted to the PSCA’s recommendations is the most critical part of the Final Report. Indeed, it is the Rosetta Stone to the NCAA’s and Power 5’s view of their role in college sports and synthesizes the entire NIL “debate” to its most essential element: the NCAA’s and Power 5’s belief that they, and they alone, should sit on the Iron Throne of college sports regulation.
The Final report also lays bare the use of “NIL compensation” as a Trojan Horse through which the NCAA and Power 5 will eliminate any competitors to the Iron Throne.
Pages 26 and 27 contextualize the work of the PSCA. These are the “smoking guns” on the NCAA’s true intentions in Congress. The PSCA declares that the NCAA “…is the most appropriate and experienced entity to oversee intercollegiate athletics” and points to the NCAA’s 114-year-long reign over college sports.
The PSCA says, “[u] unfortunately, the evolving legal landscape surrounding NIL and related issues threatens to undermine the intercollegiate athletics model and significantly limit our ability to meet the needs of student-athletes moving forward. Specific modernization reforms that the working group believes are in student-athletes’ best interests and consistent with the collegiate model might prove infeasible as a practical matter due solely to the legal risk they might create for the Association.”
“In light of the above…” the PSCA says the NCAA should “immediately'' engage Congress to obtain preemption of state laws, federal antitrust immunity, and athletes can’t be employees.
The PSCA’s directive to the NCAA on congressional engagement is disingenuous because the NCAA had already engaged Congress, as the February 11th hearing demonstrates. The Final Report does not mention the February 11th hearing.
The Working Group certainly was well aware on the date it released its Final Report that the NCAA’s lobbyists—Brownstein Hyatt, the # 1 ranked firm in DC—had engaged Congress in 2019.
Just two days after the February hearing, the SEC hired the # 2 ranked lobbying firm in DC, Akin Gump.
Within a month of the February 11th hearing, all Power 5 conferences had hired high-powered DC lobbyists to pursue their interests in Congress. For example, on March 9th, 2020, the Power 5 collectively hired two lobbying firms: (1) Subject Matter (f/k/a Elmendorf Ryan), one of the top-ranked lobbying firms in DC, and (2) Marshall and Popp, who have important connections to Sens Mitch McConnell (R-KY) and John Cornyn (R-TX).
By the time the Working Group released its Final Report, the NCAA and Power 5 had an army of lobbyists working behind the scenes to secure for their clients a federal bill that contained the very protections and immunities (preemption, antitrust immunity, and a provision that athletes could not be employees of their university) the PSCA suggested were “new” and required “immediate” engagement.
4. “Uniformity 2.0”
The NCAA’s and Power 5’s primary rationale for eliminating state legislatures from the regulatory field is uniformity. They claim that the regulation of college sports will devolve into chaos unless there is a single national standard governing NIL.
From the outset of their Congressional campaign, the NCAA and Power 5 contended that conflicting state NIL laws would bring college sports to a fatal collapse.
The NCAA and Power 5 continue to make the same argument today even though the new, less regulated NIL marketplace under the NCAA’s Interim Policy has been in effect for two and a half years and has not had any measurable negative consequence on the viability or value of college sports.
Indeed, we are in the midst of a historic financial bull market in college sports. The sky is raining money for the Power 5 with no end in sight.
Nevertheless, the NCAA’s and Power 5’s uniformity arguments—for federal preemption— have gained more support in Congress than their quest for antitrust immunity or a declaration that athletes can’t be employees.
There are three ways to achieve legislative uniformity at the national level that would eliminate or neutralize state legislatures:
Federal preemption.
A dormant commerce clause lawsuit against states with NIL laws that conflict with NCAA rules and policies.
Multi-state agreement to adopt uniform state laws through, for example, the Uniform Law Commission.
i. Federal Preemption
Preemption is a federal power grounded in Article VI of the United States Constitution, commonly known as the Supremacy Clause. The Supremacy Clause permits the federal government to nullify existing state laws and prohibit states from legislating or regulating in areas that may compromise a vital national interest.
For example, Congress has used preemption to give the federal government exclusive regulatory jurisdiction over nuclear safety, national security, civil rights, the environment, air travel, and drug labeling/advertising.
Preemption is disfavored because it disrupts the carefully calibrated balance of power between states and the federal government.
Using preemption to protect the business and financial interests of private, nonprofit associations like the NCAA and Power 5 conferences would be unprecedented in college sports.
ii. Dormant Commerce Clause Lawsuit
The NCAA threatened California with a dormant commerce clause lawsuit in 2019 but chose instead to seek preemption.
Under a dormant commerce clause lawsuit, the NCAA would rely on a theory from a 1993 case NCAA v Miller, in which the 9th Circuit used a dormant commerce clause analysis to rule that a Nevada law that conflicted with the NCAA’s infractions and enforcement rules and procedures placed an impermissible burden on interstate commerce.
The court relied on a uniformity rationale and the necessity for NCAA members across all fifty states to operate under the same rules.
The dormant commerce clause analysis is complex. It’s difficult to predict how a court might view a state NIL law in that context, but it provides the NCAA a potential pathway to eliminate states from the NIL regulatory space.
New or amended state NIL laws that took effect on July 1st, 2023, may renew the dormant commerce clause issues. Those laws have provisions that at least theoretically conflict with NCAA NIL rules and policies and also directly challenge NCAA regulatory authority. (see section V (A)(4)(ii))
iii. The Uniform Law Commission
In June 2020, the ULC began work on a uniform NIL law that states could adopt voluntarily to enhance uniformity. At the time, only SB 206 and the Colorado bill had been signed into law.
On June 12th, 2020, Florida enacted its NIL law (discussed in more detail below) with an effective date of July 1st, 2021, substantially accelerating the “threat” of state NIL laws from 2023 (CA, CO) to 2021 (FL).
As the ULC decided whether to move forward on a uniform NIL law, ULC member Harvey Perlman opposed ULC action.
Perlman’s concerns on the merits of a uniform state NIL law were practical. He concluded that a uniform NIL law would likely be ineffective (he was right).
However, Perlman prefaced his criticisms with values-based objections to athletes receiving any NIL payments:
“As the sole vote against recommending a drafting committee to pursue a Student-Athlete Name, Image, and Likeness Act, I thought it appropriate to file this separate statement of my reasons for doing so. I should acknowledge at the outset my profound opposition to granting student-athletes the right to exploit the commercial value of their name and likeness during their collegiate careers. The current efforts to authorize this practice are a reaction to the uncontrolled spending of many university athletic departments—a legitimate issue that will not be solved by allowing more money to flow into the system. Student-athletes are the best-supported students on our campuses, and any value in their celebrity status is created by their talents and the enormous investments made by Universities in promoting athletics. Non-athlete students, graduating with significant debt, and student-athletes in less visible sports will surely find the concern about the financial condition of fully supported student-athletes ironic. And, in most institutions, these same non-student athletes, through mandatory tuition and student fee payments, are subsidizing full scholarship athletes.” (emphasis added)
Perlman’s comments are worth exploring because they offer an insight into how many big-time college sports representatives and leaders see the interests of profit athletes whose talent, skill, and labor give life to the entire college sports industrial complex.
Perlman is not some random university stakeholder casually commenting on athlete issues. He is an NCAA/Power 5 insider of the highest order and has been influential in college sports.
Perlman is a law professor and former Chancellor of the University of Nebraska. He has served on the NCAA’s most powerful governing boards.
In 2013-2014, Perlman was a primary advocate for Autonomy legislation benefiting Power 5 conferences. He co-authored (with University of Florida President Bernie Machen) a memo to the NCAA Division I Board of Directors outlining the case for Autonomy status and legislation.
Perlman has also testified in Congress on behalf of big-time football interests. On October 29th, 2003, he joined then-NCAA President Myles Brand to testify to the Senate Judiciary Committee on the potential antitrust implications of the Bowl Championship Series (BCS) format and payouts.
In that hearing, Perlman made a passionate and persuasive case in favor of free markets to explain why schools like Nebraska should be able to enjoy the fruits of their football success without sharing it with others. Perlman told the Committee: “What critics [of the BCS’s allocation of money] are asking is to share in money they did not produce, to in effect have Nebraska fans or students or taxpayers to subsidize their athletics programs…I thought that fairness in our country meant that if you worked hard, if you made the right decisions, you were able to retain the allegiance of customers or patrons, and you were successful, you should be able to enjoy the benefits of that success.”
Perlman’s views on NIL compensation for athletes are at odds with his invocation of American economic values and freedoms to justify the big-time college football marketplace.
The ULC Committee Chair and Committee Reporter responded to Perlman’s objection memo focusing mainly on Perlman’s substantive concerns, not the basis for his “profound opposition” to NIL compensation.
While Perlman undoubtedly has impressive experience and credentials to speak on college sports issues, his memo demonstrated a clear bias against NIL compensation per se.
Perlman became a dominant voice in the year-long discussions on the ULC’s NIL law and held substantial sway with Committee members.
Ultimately, the ULC adopted a uniform law in July 2021—the “Uniform College Athlete Name, Image, or Likeness Act”—built primarily around the amateurism-based philosophies and limitations of its athlete-agent proposals from 2000 (UAAA) and 2015 (RUAAA).
To date, no state has adopted the ULC’s NIL law. The District of Columbia adopted it in 2022.
5. The Structure and Purpose of State NIL Laws Following SB 206
Heading into the summer of 2020, Colorado was the only other state with a NIL law on the books. Rather than challenging the NCAA’s NIL compensation limits, the Colorado law expressly incorporated them into its law.
Moreover, like SB 206, the Colorado law’s effective date was January 1st, 2023.
On June 12, 2020, Florida became the third state to enact a NIL law. The Florida law was consequential for two main reasons.
First, it was an unapologetic ode to amateurism which brought it explicitly outside the SB 206 template:
“To preserve the integrity, quality, character, and amateur nature of intercollegiate athletics and to maintain a clear separation between amateur intercollegiate athletics and professional sports, [NIL] compensation may not be provided in exchange for athletic performance or attendance at a particular institution.”
The bill was loaded with amateurism-based “guardrails,” including (1) NIL deals must be “commensurate with fair market value,” (2) prohibits schools from entering into NIL deals with athletes (incorporating the concept of the “student-athlete” by preventing the possibility of employee status), (3) specifying specific contract requirements, (4) preventing athletes from doing NIL deals that conflict with an existing school contract, (5) requiring disclosure of NIL deals to the school, (6) incorporating athlete-agent requirements.
Notably, the law did not have a clear enforcement mechanism, referencing only the Board of Governors and the State Board of Education’s authority to adopt regulations and rules to implement the law.
Second, as noted above, the Florida law substantially accelerated the timeline because its effective date was July 1st, 2021.
The Florida law did not draw the ire of the NCAA as SB 206 did. There were no threats of banning Florida athletes from competition or dramatic letters suggesting a dormant commerce clause lawsuit.
On the contrary, Florida Governor Ron DeSantis made a well-received public splash with the signing ceremony, suggesting the law would give Florida schools a competitive advantage in recruiting. Athletics directors and coaches from Power 5 schools in Florida also publicly praised the law as wonderful for athletes.
The timing of the Florida law and surrounding events in Congress may inform the response to the Florida law.
On May 23rd, 2020, just three weeks before Florida’s bill was enacted, all Power 5 conference commissioners—including SEC commissioner Greg Sankey—sent a joint letter to both chambers of Congress asking for immediate action on “Consensus Principles on NIL” that would provide preemption, antitrust immunity, and athletes can’t be employees. The letter stressed that “time is of the essence.”
Then, on June 18, just six days after the Florida NIL law was enacted, Florida Senator Marco Rubio introduced the first federal NIL bill, the “Fairness in Collegiate Athletics Act.” Rubio’s bill was a naked power grab that provided the NCAA and Power 5 with preemption, antitrust immunity, and athletes can’t be employees. It offered very little in “NIL compensation.”
Most importantly, however, Rubio’s bill would wipe Florida’s state NIL law off the books through preemption.
Rubio’s bill would go into effect on June 30th, 2021, the day before the Florida NIL law became effective.
On the same day that Rubio’s bill was introduced, the NCAA praised it on the NCAA website, explicitly touting the bill’s preemption of state laws.
On July 1st, just two weeks later, SEC commissioner Greg Sankey and other Power 5 witnesses testified in the Senate Commerce Committee on the need for protective federal NIL legislation.
Sankey invoked the Florida NIL law and its effective date of July 1st, 2021, to stress the need for immediate Congressional action.
While Sankey characterized the Florida bill as better than the California bill, his testimony was directed to nullifying both bills through federal preemption.
Sankey conceded that the SEC interests had “an opportunity to be in a conversation about that [Florida’s NIL] law.” Sankey then pointed to differences between the California and Florida laws that necessitated federal preemption under a uniformity theory.
Michael Drake, then the NCAA Board of Governors Chair, also testified at the hearing. He, too, invoked the Florida NIL law as an immediate threat that required a single national NIL standard. Ole Miss athletics director Keith Carter made similar comments.
Sen. Rick Scott (R-FL), the former governor of Florida (2011 - 2018), attended the hearing and asked only one question that had little to do with NIL.
Curiously, no witness mentioned the Rubio bill that would nullify the Florida law through preemption.
This strange scenario raises an obvious and important question: why would a Republican Senator from Florida introduce a federal law nullifying a Florida state law enacted just six days earlier by a Republican state legislature and signed by a Republican governor?
Is it likely that Florida’s Republican governor, its Republican state legislature, its Republican Senators, the SEC commissioner, and the NCAA were all reading from separate playbooks and acting independently of each other?
Whatever the motivations of these important decision-makers, the effect of these events was to create a sense of urgency for a federal bill that nationalized the NIL market and placed the NCAA and Power 5 on the Iron Throne of college sports regulation.
As noted above, another important effect of Florida’s NIL law is that it shifted the philosophy of state NIL laws from SB 206’s seemingly athlete-friendly model to an openly amateurism-based, NCAA-friendly model.
The evolution of state NIL laws from SB 206 to Florida’s law, then to other state laws modeled after it, and the ULC’s proposal demonstrate the power and durability of NCAA amateurism-based mythologies.
