{"id":3053,"date":"2021-07-01T08:41:37","date_gmt":"2021-07-01T12:41:37","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jsel\/?p=3053"},"modified":"2023-07-25T11:40:33","modified_gmt":"2023-07-25T15:40:33","slug":"the-nil-era-has-arrived-what-the-coming-of-july-1-means-for-the-ncaa","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jsel\/2021\/07\/the-nil-era-has-arrived-what-the-coming-of-july-1-means-for-the-ncaa\/","title":{"rendered":"The NIL Era Has Arrived: What the Coming of July 1 Means for the NCAA"},"content":{"rendered":"

From September 2019\u2014when California became the first state to pass a name, image, and likeness (NIL)<\/span> law<\/span><\/a>\u2014until now, the intercollegiate athletic community has fielded a deluge of new enacted and proposed regulations from states, Congress, the NCAA, and now individual institutions. As the proverbial NIL floor was shifting, there was one thing on everyone\u2019s minds: July 1, 2021.<\/span><\/p>\n

As of July 1, college athletes nationwide can monetize their name, image, and likeness. If an institution is in a state without an effective NIL law on July 1, the institution is responsible for adopting its own NIL policy. Meanwhile, institutions in states with an effective NIL law on July 1 can also adopt their own NIL policy, but they must abide by their state\u2019s NIL law.<\/span><\/p>\n

How did we get here?<\/b><\/p>\n

In 2020, Florida became the first state to enact NIL legislation with a July 1, 2021 effective date, but it was soon followed by many others. In fact, NIL laws in six states\u2014Texas, Alabama, Florida, Georgia, Mississippi, and New Mexico\u2014and executive orders in two states\u2014Kentucky and Ohio\u2014went<\/span> into effect on July 1<\/span><\/a>. These states will be followed by 13 others that have enacted NIL legislation with later effective dates.<\/span><\/p>\n

As the number of states with a July 1 effective date grew, the fact that institutions in different states would be subject to different NIL regulations produced two principal concerns. The first was uncertainty about how the NCAA would enforce its amateurism rules, which had long prohibited athlete monetization of NIL at any member institution. The second concern involved equity and the question of whether institutions in states permitting NIL monetization would be at a recruiting advantage. One obvious solution to the state-by-state patchwork would be a national NIL rule. To this effect, the NCAA was set to vote at its 2021 Convention in January on new NIL legislation. The vote was <\/span>tabled<\/span><\/a> in all three divisions, however, due to \u201crecent judicial, political and governmental enforcement events, including communication from the U.S. Department of Justice Antitrust Division.\u201d Notably, the Department of Justice letter <\/span>stated<\/span><\/a> that the proposed NIL rule changes \u201cmay raise concerns under the antitrust laws.\u201d The letter further asserted that \u201cthe antitrust laws demand that college athletes, like everyone else in our free market economy, benefit appropriately from competition.\u201d After this January 2021 letter warning of an antitrust violation, all eyes turned to the <\/span>NCAA v. Alston<\/span><\/i><\/a> case being heard by the Supreme Court in March.<\/span><\/p>\n

While the prospects of a national NIL rule from the NCAA were put to the side, pressure mounted to get a federal bill passed. This pressure included the NCAA lobbying explicitly for Congress to grant the organization a blanket antitrust exemption. To date, there have been at least eight <\/span>proposed<\/span><\/a> federal NIL bills. Although a federal NIL law is possible some time in the future, as the months passed, it became clear that the law would not be enacted by July 1. NCAA president Mark Emmert acknowledged this in his <\/span>letter<\/span><\/a> to the NCAA member institutions on June 18, 2021. In the letter, Emmert cited the delay in federal NIL legislation and urged the membership in all three divisions to act immediately to provide student-athletes an NIL rule by July 1.<\/span><\/p>\n

A mere three days later, on June 21, 2021, the Supreme Court dropped its bombshell <\/span>decision<\/span><\/a> in <\/span>NCAA v. Alston<\/span><\/i>. The <\/span>Alston<\/span><\/i> case unanimously held that the NCAA\u2019s limitations on education-related benefits provided to student-athletes violate antitrust law. Although the case was limited to the more narrow question of education-related benefits, the decision will likely have broader implications for NCAA rules generally. The tone for any upcoming NCAA NIL rule change was set by the now famous line in Justice Kavanaugh\u2019s concurrence that \u201cthe NCAA is not above the law.\u201d The <\/span>Alston<\/span><\/i> decision and the critical language in Justice Kavanaugh\u2019s concurrence brought everyone\u2019s attention back to the Department of Justice warning in January: NCAA NIL rule changes may implicate antitrust regulations.<\/span><\/p>\n

Following the <\/span>Alston<\/span><\/i> decision, on June 23, 2021, Emmert sent out another memo to member institutions<\/span> stating<\/span><\/a> that \u201cpermanent NIL rule changes by July 1 are unlikely due to the legal environment.\u201d Emmert suggested that interim NIL policies be adopted instead until some federal legislation or permanent NCAA rule could be adopted.<\/span><\/p>\n

In line with Emmert\u2019s June 23 letter, the Division I Council <\/span>voted<\/span><\/a> on June 28 to recommend that the Board of Directors suspend amateurism rules related to NIL and adopt interim NIL policies.\u00a0<\/span><\/p>\n

Specifically, the Division I Council provided the following guidance to member institutions and student-athletes:<\/span><\/p>\n