{"id":3252,"date":"2022-02-16T10:54:49","date_gmt":"2022-02-16T15:54:49","guid":{"rendered":"https:\/\/www2.law.temple.edu\/10q\/?p=3252"},"modified":"2022-02-16T10:54:49","modified_gmt":"2022-02-16T15:54:49","slug":"the-supreme-court-calls-foul-on-the-ncaa-impact-of-the-nil-ruling-on-college-athletics","status":"publish","type":"post","link":"https:\/\/law.temple.edu\/10q\/the-supreme-court-calls-foul-on-the-ncaa-impact-of-the-nil-ruling-on-college-athletics\/","title":{"rendered":"The Supreme Court Calls \u201cFoul!\u201d on the NCAA: Impact of the NIL Ruling on College Athletics"},"content":{"rendered":"

Professor Ken Jacobsen, Director of the Sports Law program at Temple University Beasley School of Law recently hosted a CLE where he and a panel of experts from Temple University\u2019s (\u201cTemple\u201d) administration discussed the impact of Name, Image and Likeness (\u201cNIL\u201d) regulations in light of the Supreme Court decision in NCAA v Alston[1]<\/strong><\/a><\/em>, Pennsylvania\u2019s recently enacted NIL statute, and Temple University\u2019s own policies.  Professor Jacobsen took the attendees through a history of the NCAA rules and relevant legislation, then led the panel as they discussed the steps that Temple is taking to provide opportunities for our student athletes while navigating a hodgepodge of nascent rules and regulations impacting college athletics programs across the country.<\/p>\n

History of Student Athlete Compensation<\/u><\/strong><\/p>\n

The National Collegiate Athletics Association, (\u201cNCAA\u201d) has strict rules about what and how much a student athlete can receive for performing their sports.  Compensation has been limited to grants in aid that were strictly tied to the student athlete\u2019s education expenses: scholarships, tuition, room and board, books, and supplies.  Students who received, or schools who gave, anything outside of the NCAA\u2019s strict guidelines faced sanctions by the NCAA or expulsion from their athletics programs.  The NCAA prohibits practices like pay-for-play (non-education related compensation for playing on a team,) or recruitment inducements (gifts or perks to lure athletes to play for one school over another).  The purported aim of these NCAA rules is to maintain the spirit of amateurism in college sports.  Schools, video game producers, apparel brands, and the NCAA itself have monetized the NIL of these athletes, while, as Jacobsen noted, \u201cthe athletes themselves were never able to get a piece of the pie.\u201d<\/p>\n

In NCAA v Alston<\/em>, the issue of student athlete compensation made it to the United States Supreme Court.  While many anticipated that the case was an opportunity for the Supreme Court to write broadly on amateurism, pay-for-play, and the monetization of NIL, Jacobsen emphasized that the Alston<\/em> ruling dealt only with the issue of compensating athletes for their expenses.   The Court in Alston<\/em> ruled unanimously that any caps<\/em><\/strong> on educational related expenses by the NCAA were a violation of antitrust laws.  The Court determined that expenses for computers, paid internships, study abroad programs, and other education related expenses could be paid to student athletes without any restrictions.  If the NCAA tried to implement restrictions on these expenses, they would be in violation of antitrust laws.<\/p>\n

Pennsylvania\u2019s SB381<\/u><\/strong><\/p>\n

Jacobsen notes that while the Alston<\/em> case wasn\u2019t an NIL ruling, it was in response to this case that the NCAA relaxed its policies on NIL<\/a> and state legislators across the country began adopting their own patchwork of laws addressing student athlete compensation.<\/p>\n

Kristy Lee Bannon, Athletic Director of Compliance at Temple, walked through Pennsylvania\u2019s statue, Senate Bill 381\u2019s (\u201cSB 381\u201d) \u201cguidelines and guardrails,\u201d explaining how the bill allows student athletes to monetize their NIL within certain parameters.  For example, student athletes cannot partner with adult entertainment, alcohol, gambling, tobacco or e-cigarettes, prescription drugs, or controlled substances (including cannabis).  Temple\u2019s own policy mimics the state law.  Recruitment and enrollment inducements are prohibited, therefore, Temple cannot use NIL compensation or the promise of a sponsorship to induce an athlete to play for them.  Similarly, Temple cannot offer an endorsement deal to a player to stay longer instead of going pro; an activity that could trigger the law\u2019s provision against pay-for-play.   Temple athletes are also accountable to the school\u2019s student code of conduct, so while state law doesn\u2019t prohibit firearms endorsement, Temple\u2019s code of conduct would.<\/p>\n

Unchartered Waters<\/u><\/strong><\/p>\n

Members of the panel agreed that while that while the rulings, the NCAA\u2019s response and resulting state legislation are clear victories for student athletes, the existing regulatory environment is unclear.  As of this writing, there are 25 states<\/a> that have adopted legislation regarding student athlete compensation.  Jacobsen commented on the lack of uniformity between the states\u2019 laws and highlighted how inconsistencies create cross border conflicts of law challenges for schools and athletes from different states.  While there have been some efforts at harmonization, his ultimate hope is for a national standard.<\/p>\n

 <\/u><\/strong>How Temple Athletics is Responding<\/u><\/strong><\/p>\n

Former men\u2019s basketball coach and acting Athletic Director, Fran Dunphy commented on how college athletics and university life has changed over the years, creating new challenges institutions must respond to.  He notes that the NCAA has evolved as demonstrated by initiatives like the new transfer portal which allows for free-agency of college athletes.  Schools and administrators must recognize that issues concerning social injustice and mental health are a priority, not just for athletes but all students.<\/p>\n

Justin Miller, Senior Associate Director for Academics and Career Services, reinforced Coach Dunphy\u2019s sentiments. Gone are the days of simply helping student athletes perform in the classroom or budget their scholarship award; administrators now coach them on their roles as entrepreneurs by improving financial literacy, developing their brands, creating social media content, and finding endorsement opportunities. And, if influencing or social media is not in the student\u2019s interest, Miller\u2019s team helps them explore other avenues to monetize their attributes.  Previously prohibited, athletes can now engage in ventures that leverage their sporting ability like personal training or running children\u2019s camps.<\/p>\n

Temple\u2019s Athletics team has taken a proactive approach to creating a broad based, multi-pronged program to help student athletes make the most of these new opportunities. Their efforts include:<\/p>\n