Eleven States Have Still Done Nil on Name, Image and Likeness
Just over two years since California state Sen. Nancy Skinner introduced SB 206, the nation’s first law addressing the publicity rights of college athletes, the strong majority of the country’s legislatures have jumped on the bandwagon.
Despite a pandemic that has severely hindered both lawmaking and sports-playing over the last year, at least 39 state legislatures have by now produced at least some kind of college athlete NIL bill. As of this week, five other states have joined California in passing laws, and 17 states have introduced new legislation this year, according to Julie Sommer, a lawyer who tracks the issue as a board member for The Drake Group, a college sports reform organization.
“The definite trend is not only to introduce new bills but to move up the effective date sooner,” said Sommer.
In all, this leaves 11 states—plus the nation’s Capital—that have made no NIL legislative moves whatsoever, even though introducing a bill is a relatively low bar that a lone, virtue-signaling state representative can hurdle. Sommer thinks that, by this point, it’s a mistake for a state to completely stay on the sidelines, but other reformers don’t see a benefit to pitching a bill at this stage.
“It is prudent to wait, and I think the sense is, among most people, that whatever the outcome is, it will be a uniform outcome,” said Gabe Feldman, a Tulane sports law professor who serves as the reporter for the Uniform Law Commission’s Study on College Athlete Name, Image, and Likeness.
Geographically, the NIL null set includes the westernmost and easternmost members of the union, but forms a notable cluster in the heartland, with three states in Big Ten country.
Nine of the 11 have had legislatures and governor’s mansions controlled by Republicans since California’s law was proposed, but the list also includes President Joe Biden’s home state—one of the bluest in the country. And if you include Washington, D.C., then it really confuses the politics of the issue. On the other end of the legislating spectrum is deep-red Alabama, which has seen four separate NIL bills introduced just this year.
That doesn’t mean politics aren’t in play—in each of the three Big Ten NIL holdout states, there are university leaders with salient ties to the NCAA.
“In most of these states, the universities had input in the legislation, and I think it is fair to say that in almost all states that the legislators were in touch with people from these institutions,” said Feldman. “There are some situations where the lobbying and persuasion was stronger.”
That said, there also doesn’t seem to be a direct correlation between a state’s legislative activity on the issue and the preparations its local universities have made in anticipation of reform: At least five of the do-nothing states have schools engaged in formal NIL consulting partnerships.
A state’s prevalence of major college sports also does not appear to be the defining factor in whether it has proposed NIL legislation: Ohio (13) and Indiana (10) each field double-figure D-I departments.
The concept of name, image and likeness is not necessarily foreign to the do-nothings, either: Four of the states (Indiana, Ohio, Utah, Wisconsin) and Washington, D.C., have some kind of right of publicity statute on their books. And most of the states have shown past interest in the well-being of college athletes: All but two have adopted at least the 2000 version of the Uniform Law Commission’s Athlete Agents Act, including four that have enacted its most recent amendment allowing athletes greater flexibility when it comes to soliciting professional guidance.
The one consistency about this club is that it gets more and more exclusive. In just the last couple of weeks, the list of holdout states shrank by two as legislators in Nevada and Arkansas introduced their first NIL bills on March 12 and March 18, respectively. Montana saw its first bill proposed on Feb. 15.
Here’s a look at who remains on the bench:
OHIO
LeBron James, a famous son of Akron, was a prominent and public force behind California’s SB 206, hosting Gov. Gavin Newsom for a bill signing in his made-for-HBO barbershop. But James’ identification with the cause did not prevail upon his home state. Before Newsom’s signature had time to dry, Ohio Gov. Mike DeWine told reporters that he had no plans to push his state’s legislature on the issue.
Last February, Ohio Rep. Anthony Gonzalez, a former Ohio State and NFL receiver, was one of the first members on Capitol Hill to signal interest in bringing federal NIL legislation to the floor, which he eventually did in September with the bipartisan Student Athlete Level Playing Field Act. It’s possible state politicos have simply decided to take a backseat to Gonzalez’s effort.
But it’s also possible that they’ve capitulated to the wishes of some powerful local figures. OSU athletic director Gene Smith, the co-chair of the NCAA’s NIL working group, immediately came out against the California bill, saying it moved college sports “slightly towards pay-for-play,” and he’s long insisted on a federal solution to athlete compensation rights. Smith’s previous boss, former Ohio State president Michael Drake, was at the same time chairing the NCAA’s Board of Governors, a post he occupied until this past October.
Still, it’s notable that in such a college sports-centric state, legislators have remained indifferent to NIL. Last year, the sports marketing firm Opendorse ranked four Buckeye football players in its top-25 list of NFL Draft prospects with the greatest social media earning potential, and determined that OSU quarterback Justin Fields could have netted $1.3 million annually if allowed to capitalize on his various social platforms.
INDIANA
Just imagine the legion of Hoosier State athletes over time who could have made hay off their NIL—or, to keep it simpler, just imagine the Hoosiers. “I would have made a heck of a lot of money at IU,” former star guard Steve Alford told reporters back in October 2019. But in addition to featuring college sports cathedrals like Assembly Hall and Notre Dame Stadium, Indiana is also where the canon law is officially sanctioned—at the Indianapolis-based NCAA, whose headquarters are just a 14-minute walk from the state capitol.
“To some degree, it has felt with these other states, a lot of the impetus there is this is going to be a competitive advantage in recruiting,” said Galen Clavio, director of IU’s National Sports Journalism Program, “but I just don’t know if the representatives here are wired that way.”
For the schools, however, it’s been a different story. Last summer, Clavio was part of an IU task force to “support its students in understanding, assessing and capitalizing in NIL opportunities.”
In 2012, longtime state representative Bill Crawford proposed model legislation for a college athlete “bill of rights” requiring schools to guarantee scholarships for athletes with career-ending injuries and mandating how schools cover sports-related medical expenses. Crawford’s efforts didn’t go anywhere, but a similar bill in California ended up being signed into law.
Although Indiana has a robust right of publicity statute, the state Supreme Court unanimously ruled in the 2019 Daniels v. FanDuel case that its protections did not extend to college athletes’ names and information that is considered newsworthy.
WISCONSIN
From a historical perspective, if any state should be at the vanguard of NIL reform, it is Wisconsin—the home of Robert La Follette’s progressive labor reform efforts in the early 20th century and Nigel Hayes’ college athlete activism 100 years later.
In 2014, Hayes, then a UW sophomore basketball player, joined as a named plaintiff in the Jenkins v. NCAA lawsuit challenging athlete compensation restrictions, and two years later unsuccessfully attempted to lead a team boycott in UW’s nationally televised game against Syracuse. Hayes’ former teammate, Zach Bohannon, another outspoken critic of amateurism, later joined the board of the National College Players Association.
While those two former Badgers have carried the torch for the players, a top university administrator has been a strident defender of the existing system. In 2018, chancellor Rebecca Blank—a former commerce official under Barack Obama—testified as a witness for the NCAA in the grant-in-aid class action suit, Alston v. NCAA, where she suggested UW might discontinue athletics if the plaintiffs prevailed. (The school quickly walked that back.) Last year, before a Senate hearing on athlete compensation, she again defended the status quo, saying “the business model for college athletics is greatly misunderstood by the public.”
Blank is not the only Wisconsin university official with NIL-related connections to the NCAA: UW-Oshkosh athletic director Darryl Sims was a member of the association’s working group.
Instead of proposing an NIL law, a bipartisan group of Wisconsin state legislators introduced a joint resolution last February that encouraged the NCAA to address the issue, with the feeble threat that lawmakers would reconvene if there were signs the NCAA was not on schedule with protecting the “liberties of student-athletes in Wisconsin.” The resolution failed to be adopted and no other state legislative action has been undertaken since.
WASHINGTON, D.C.
With the House of Representatives expected to vote this week on a statehood bill, it is curious that D.C.’s political leaders haven’t taken up the issue of NIL as a proxy for its sovereignty. After all, both movements speak to issues of racial inequality and the denial of rights granted to most other Americans over the age of 18. Moreover, the District is deeply concentrated with college sports (Georgetown, George Washington, Howard and American) within its taut, 68 square miles.
In October, Georgetown president John DeGioia became the chair of the NCAA’s Board of Governors.
Eleanor Holmes Norton, D.C.’s non-voting delegate to the House of Representatives, has previously weighed in on college athletes’ issues, complaining in a 2016 letter to NCAA President Mark Emmert about the association’s decision to ban college coaches from working at satellite camps, which she said would limit her young constituents’ chances for exposure.
When asked this week, Lindsey Walton, the communications director for D.C. Council Chairman Phil Mendelson, said she was unaware of any efforts where the council had been lobbied on NIL.
THE REST OF THE FIELD
Utah is the only other Power 5 state on the list of holdouts. Although there has been no legislative activity in Salt Lake City, the state’s junior Sen. Mitt Romney has previously told the NCAA “we’re coming for you”—referring to Congressional NIL action. In September, BYU announced a partnership with Opendorse and, shortly thereafter, the University of Utah announced it was extending its relationship with rival NIL consulting firm INFLCR…. In Idaho, Boise State University announced a partnership with INFCR earlier this month. Meanwhile, Sam Ehrlich, an assistant professor in Boise State’s department of management, filed an amicus brief in support of the players in NCAA v. Alston…. South Dakota Sen. John Thune has publicly worried about how NIL legislation would impact schools in his state…. In October 2019, University of Alaska president Jim Johnsen expressed support for the passage of the California NIL bill…. Maine and North Dakota both feature elite D-I hockey programs that have produced a steady pipeline of pro players….Delaware’s most marketable college sports hub has traditionally been its national power figure skating club, which is not subject to the NCAA’s amateurism rules.
Michael McCann contributed reporting to this story
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