NCAA surprise leaves states rethinking college athlete pay rules

As the NCAA considered new rules last year to allow college athletes to profit from the use of their name, image and likeness, state legislatures raced to implement their own laws to protect students and give their local colleges and universities a leg up in recruiting new talent.

But the NCAA surprised legislators in June by suspending existing rules that governed an athlete’s ability to profit off their fame. Now, some states are reconsidering the legislation they passed just months ago.

“Ahead of any determination by the NCAA, we wanted to get something. Our expectation was they were going to let state law prevail,” said Alabama state Rep. Kyle South (R), who sponsored his state’s version of a name, image and likeness bill. “The NCAA actually switched paths and adopted skeleton rules that were less limiting than what our state law was.”

South has now introduced a measure to repeal his original bill. He said any rules implemented by a state would, by definition, be stricter than the NCAA’s hands-off approach, putting colleges in his state at a disadvantage when recruiting athletes like Suni Lee, the American gymnast who went to Auburn after winning gold at the 2020 Summer Olympics.

In the years since California became the first state to pass a name, image and likeness bill, legislatures in 20 states have laws in effect that allow a college athlete to profit off his or her name, image or likeness. Governors in North Carolina and Kentucky have issued executive orders relating to the matter. Laws passed in another seven states have yet to take effect.

Those laws on the books cover the entirety of the states in the Southeastern Conference, most of the PAC-12 and much of the Atlantic Coast Conference. Most Big 10 and Big 12 states have some form of law on the books, though there are exceptions in states like Wisconsin, Iowa, Minnesota and West Virginia, where no such laws have been passed.

Legislators worry that athletes who want to profit off their fame while in college will opt to attend schools in states that have no name, image and likeness law, putting their own states at a disadvantage.

“When the NCAA stepped away from it, if you didn’t have a state law, you had an advantage,” said Florida state Rep. Chip LaMarca (R). “There’s a gap in comparing the rest of the states to Florida.”

LaMarca has introduced legislation this year that would reform his state’s law, retaining a structure meant to support athletes — most of whom will be making serious money for the first time in their lives and who have to navigate legal contracts and tax bills — without putting Florida at a disadvantage.

LaMarca’s measure would allow college athletics staff to be involved in helping athletes craft the agreements they eventually sign with a company. He said he wanted to maintain a structure that promoted financial literacy and life skills training for athletes who are not used to reading complex legal documents or managing money.

“When you vacate the law and repeal it, you basically give up on any kind of framework,” LaMarca said. “We want to keep the framework in place that protects the athletes.”

Few other states have taken concrete steps to revise their existing laws — a top legislative aide in California said he did not foresee any changes to its law yet — but amendments and outright repeals may be just around the corner if colleges and universities find themselves at a recruiting disadvantage under the new rules.

The NCAA’s surprise decision to vacate their rule left schools and states scrambling to adapt, said Helen “Nellie” Drew, director of the University of Buffalo School of Law’s Center for the Advancement of Sport.

“Everybody was anticipating that there was going to be some sort of comprehensive approach from the NCAA, which never happened,” Drew said in an interview. “Everybody’s operating in a vacuum.”

An NCAA spokesperson declined to answer specific questions about how or when a new rule might be crafted, pointing instead to statements on the association’s website outlining the current status of its policies.

Now, college athletics departments and the conferences they make up are looking to Congress for national guidance. Sens. Jerry Moran (R-Kan.) and Richard Blumenthal (D-Conn.) are working on legislation along with Sen. Cory Booker (D-N.J.), a college athlete himself when he was at Stanford.

“One of the demands for action on this is a result of the desire to avoid 50 different state standards,” Moran said in an interview. “The longer this goes, the more intense the requests are for Congress to act.”

Moran said he would push Commerce Committee chair Maria Cantwell (D-Wash.) and ranking member Roger Wicker (R-Miss.), who previously advocated for a federal response, to make reform a priority.

The NCAA has set up a transformation committee that may consider a more formal name, image and likeness rules. But top college athletics officials say they still want to see federal action.

“The goal is for some kind of congressional action,” said Herb Vincent, the SEC’s associate commissioner for communications.

In the days after the NCAA vacated its rule, hundreds of athletes announced partnerships with brands big and small. A basketball player at the University of Iowa signed a deal with a local fireworks shop; five football players at Jackson State signed deals with a grooming product company; Auburn’s quarterback endorsed a sweet tea; and an Arkansas wide receiver and his dog partnered with PetSmart, according to ESPN.

But many of those athletes are wading into uncharted, unknown and uncertain territory. The rules are likely to change, leaving some athletes exposed if they fall behind those changes.

“The challenge right now is you’ve got student athletes who by and large aren’t necessarily well versed in these matters, because nobody is, navigating an area where there’s very little guidance,” Drew said. “We’re looking at a messy few years, for sure.”