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Maryland Gov. Larry Hogan (R) on Tuesday signed Senate Bill 439, also known as the Jordan McNair Safe and Fair Play Act.
The Act, named after the University of Maryland football player who died in 2018, will require Maryland’s public universities to adopt new NIL and health-related policies on July 1. Maryland joins Florida, Georgia, Alabama, New Mexico and Mississippi as states with NIL laws set to go into effect on that date.
The McNair Act generally tracks other states’ NIL legislation. It forbids in-state public colleges—though, unlike in Florida and other states, private colleges are not named—from enforcing any NCAA rule that prevents an athlete from earning compensation for the use of their NIL. This is true for endorsement deals, sponsorships and paid influencing arrangements. The Act also bars the NCAA, conferences, “or any other group or organization with authority over intercollegiate athletics” from denying those opportunities.
At the same time, the Act places limits on athletes’ NIL activities. For instance, it allows colleges to prohibit an athlete from “engaging in in-person advertising for a third-party sponsor during official and mandatory team activities.” The Act also forbids athletes from signing contracts that conflict with a provision in a school contract, such as a sponsorship with a sneaker company. Likewise, it clarifies that “nothing” in the Act confers to athletes the right to use any names, trademarks, logos or other intellectual property of the school. Athletes are also required to disclose contracts to their schools.
One key difference with the Act from other states’ NIL laws is that incorporates health and safety provisions. Those provisions are geared towards preventing another tragedy like the one that befell Jordan McNair, who died two weeks after suffering from heatstroke during a practice in 2018. To that end, the Act mandates that schools adopt guidelines to prevent, assess and treat brain injury, heat illness, rhabdomyolysis and other serious sports-related conditions. It further demands return-to-play protocols and supervision guidelines of athletes who suffer from asthma and sickle cell trait and engage in rigorous practice and training.
As explained in other Sportico stories, the NCAA now faces a policy and legal decision of historic magnitude. Colleges in a handful of states will be legally compelled on July 1 to allow their athletes to negotiate and sign endorsement deals. At the same time, those colleges owe contractual obligations to follow NCAA amateurism rules.
It’s technically possible Congress could pass, and President Biden signs, a federal NIL bill into law before July 1. And it’s possible such a federal law preempts state NIL laws. But that’s a complex situation, both politically and legally. States could challenge the federal law in court should it conflict with state law or unlawfully preempt enforcement of such law.
It’s also possible the NCAA could adopt a national NIL standard before July 1, and the organization is said to be restarting its search for a third-party administrator. However, there is no indication that will happen. Even if it did happen, an athlete could challenge an NCAA NIL standard if it conflicts with state law.
The NCAA could also sue the governors in each of the NIL states and demand restraining orders to block enforcement of NIL laws. The NCAA would likely argue the state laws violate the Contract and Commerce Clauses of the U.S. Constitution (as the NCAA successfully argued in the Miller case in the early 90s, though here the relationship is between the athlete and third parties, not the school). But if the NCAA fails in any of those lawsuits, its overarching legal strategy will fail, too: Colleges in at least one state would be obligated under state law to permit endorsement deals.
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