INDIANAPOLIS — Student-athletes at Appalachian State University and other colleges around the country now have the ability to make money off of their own names, images and likenesses following the adoption of an interim policy by the NCAA on Wednesday, June 30.
“This is an important day for college athletes since they all are now able to take advantage of name, image and likeness opportunities,” NCAA President Mark Emmert said in a statement. “With the variety of state laws adopted across the country, we will continue to work with Congress to develop a solution that will provide clarity on a national level. The current environment — both legal and legislative — prevents us from providing a more permanent solution and the level of detail student-athletes deserve.”
With the new policy, student-athletes can receive compensation for the use of their name, image and likeness while not voiding their remaining eligibility and use a professional service for branding. Student-athletes will be able to receive money from monetized social media accounts, signing autographs, teaching camps or lessons and participating in advertising campaigns, among other forms of NIL usage.
However, the policy noted student-athletes “should report NIL activities consistent with state law or school and conference requirements to their school.”
After the policy was unveiled, App State Athletic Director Doug Gillin said in a statement released on social media the school would support their student-athletes as they “navigate new opportunities” associated with NIL.
“Using a pragmatic, data-driven approach that puts academics at the forefront, we are committed to educating our student-athletes on how to maximize their personal brands,” Gillin said in a statement. “This is a quickly evolving landscape in which there are still many unanswered questions. We will continue to work with university partners and industry leaders to give our student-athletes helpful tools and education in areas such as branding, entrepreneurship, social media engagement, financial literacy, time management, tax management and licensing.”
Almost immediately, student-athletes around the nation began to hop on the opportunity. Auburn quarterback Bo Nix announced hours after the policy took effect that he had partnered with Milos, a sweet tea brand, while Fresno State guards Hanna and Haley Cavinder signed an endorsement deal with Boost Mobile.
In Boone, the official Twitter account for App State’s football recruiting tweeted about the potential branding and self-promotion recruits could expect as a Mountaineer. In social media posts, App State’s players made it clear they were ready to benefit from the new NIL policy, with quarterback Chase Brice and center Baer Hunter releasing logos for their personal brands and running back Cam Peoples releasing licensed merchandise.
The NCAA stated that while their student-athletes would be receiving compensation, they felt the new policy still upheld their commitment to avoid “pay-for-play,” where some schools would be able to pay an athlete to go there instead of enrolling with a rival.
The policy change comes in the wake of the United States Supreme Court’s decision in the National Collegiate Athletic Association v. Alston et al. case on June 21, in which the court unanimously agreed that the NCAA violated U.S. antitrust laws when it came to their restrictions of college athletes receiving money or benefits, according to the opinion filed by the court.
NCAA v. Alston was the result of multiple lawsuits challenging the NCAA that were combined into one case, beginning in the Northern District Court of California. Presiding over it was Judge Claudia Ann Wilken — who had previously overseen a similar class-action lawsuit in 2014 in O’Bannon v NCAA and ruled against the NCAA — ruled against the NCAA a second time in March 2019.
The NCAA appealed Wilken’s decision to the U.S. Court of Appeals for the Ninth Circuit, where a three-judge panel ruled in May 2020 to uphold Wilken’s decision. The case then headed to the Supreme Court in October 2020 after petitions from the NCAA and the American Athletic Conference, where it met its conclusion.
Delivering the opinion of the court, Justice Neil Gorsuch noted the NCAA “seeks immunity from the normal operation of the antitrust laws and argues, in any event, that the district court should have approved all of its existing restraints,” adding that the intentions of avoiding a pay-for-play crisis in the early 1900s had overreached in the century since.
Gorsuch wrote in the opinion of the NCAA’s broadcasting deals, which includes an annual $1.1 billion in revenue for March Madness, ticket sales and other revenues leading the NCAA to become a “massive business” and that “those who run this enterprise profit in a different way than the student-athletes whose activities they oversee.”
Writing the consenting opinion, Justice Brett Kavanaugh noted it was not the court’s job to decide how the NCAA would proceed, but it was the court’s job to decide if what they were doing in the present was legal.
“The NCAA acknowledges that it controls the market for college athletes. The NCAA concedes that its compensation rules set the price of student-athlete labor at a below-market rate. And the NCAA recognizes that student-athletes currently have no meaningful ability to negotiate with the NCAA over the compensation rules,” Kavanaugh wrote.
Kavanaugh noted the NCAA repeatedly asserted that its rules regarding student-athlete compensation were there to “help define the product of college sports” and were in fact promoting competition.
“Specifically, the NCAA says that colleges may decline to pay student-athletes because the defining feature of college sports, according to the NCAA, is that the student-athletes are not paid,” Kavanaugh wrote. “In my view, that argument is circular and unpersuasive. The NCAA couches its arguments for not paying student-athletes in innocuous labels. But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America.”
Later in the day following the ruling, the NCAA released a statement noting the Supreme Court’s decision, while preserving the rulings of the lower courts, reaffirmed their authority to “adopt reasonable rules” when it came to student-athlete benefits.
“Even though the decision does not directly address name, image and likeness, the NCAA remains committed to supporting NIL benefits for student-athletes,” said NCAA President Mark Emmert. “Additionally, we remain committed to working with Congress to chart a path forward, which is a point the Supreme Court expressly stated in its ruling.”
The ruling came amid individual states enacting laws that would allow student-athletes in college to receive compensation for their name, image and likeness. States including Georgia, Florida and Maryland had already passed laws that would have allowed student-athletes to receive compensation, although the individual laws varied in the amount they could receive and from what.
For example, Georgia’s House Bill 617, passed on May 6, would require student-athletes to pool up to 75 percent of any NIL income into an escrow account to be shared with other athletes. That money would then be withdrawn after they graduate or a year after they leave the school.
Meanwhile, North Carolina Senate Bill 324, filed on March 18 by primary sponsor Sen. Wiley Nickel (D-Wake), would allow student-athletes to receive compensation from their NIL rights or hire an agent while protecting their eligibility from the NCAA’s rules with no additional conditions.
While SB 224 has been referred to the Committee on Rules and Operations of the Senate since March 22, Gov. Roy Cooper jumped ahead of the legislature with an executive order signed on Friday, July 2.
Executive Order No. 223 affirmed that student-athletes enrolled in postsecondary institutions in North Carolina may receive compensation and obtain representation for the use of their NIL without it affecting their scholarship eligibility. However, the order does include conditions such as student-athletes may not receive compensation as an inducement to enroll at an institution and that compensation may not come from the institution.
The executive order also allows institutions to prohibit student-athletes from receiving compensation from an agreement that conflicts with a contract already in-place with the institution and allows institutions to impose “reasonable limitations or exclusions” on the types of brands student-athletes can sign with if the institution deems the product or brand “antithetical to the values of the institution.” The executive order also notes that it does not grant student-athletes the ability to use trademarked intellectual property of their schools, conferences or the NCAA in the process of using their NIL rights for compensation.
“This order ensures that North Carolina has rules in place to let collegiate student-athletes earn compensation from their name, image and likeness,” Cooper said in a statement. “Treating these athletes fairly and uniformly will help our state remain a competitive and desirable place to get educated and compete.”
The NCAA noted that the NIL policy is a temporary measure, until they adopt a permanent rule or laws are passed that will decide for them.
“The new interim policy provides college athletes and their families some sense of clarity around name, image and likeness, but we are committed to doing more,” NCAA Division III Presidents Council chair Fayneese Miller said. “We need to continue working with Congress for a more permanent solution.”