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NCAA begins process of allowing student-athletes to profit off their own likeness

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This is a big step in favor of the rights of student-athletes, but the battle is far from over.

LAUREN VICTORIA BURKE/AP

On September 30th, California shook the sports world by passing California Senate Bill 206, also known as the Fair Pay to Play Act, into law. The bill allows collegiate student-athletes to sign with an agent and sign endorsement deals to profit off their individual likeness. In the time since, many states have introduced versions of similar legislation.

In Illinois, Representative Emanuel Chris Welch, a former Northwestern baseball player, introduced Illinois House Bill 3904, known as the Student Athlete Endorsement Act. Both of these actions, along with the long history of student-athlete labor legislation, all of which we will profile below, led to today’s actions.

On Tuesday, the NCAA begun the process that may lead to a landmark concession, as the Board of Governors voted unanimously to consider recommendations that would allow student-athletes to profit off their own name, image, and likeness.

For months, the NCAA Board of Governors Federal and State Legislation Working Group has been evaluating the prospects of this legislation since May and this morning, they turned in their recommendations, which were unanimously supported.

The decision was announced by Ohio State University President Michael V. Drake, who said, “We must embrace change to provide the best possible experience for college athletes. This modernization for the future is a natural extension of the numerous steps NCAA members have taken in recent years to improve support for student-athletes, including full cost of attendance and guaranteed scholarships.”

This decision does not implement any changes in the moment, saying only that they will “immediately consider updates to relevant bylaws and policies for the 21st century.” It is important to note that the NCAA still opposes the Fair Pay to Play Act, saying “the action taken by California likely is unconstitutional.” As of now, the NCAA is still challenging the California legislation in court.

The NCAA refused to comment on what specifically within the Fair Pay to Play act they view as unconstitutional.

California remains the only state that has passed legislation to permit student-athletes to be compensated for their name, image, and likeness rights, yet Florida, New York, Illinois are among many other states considering legislation.

History of student-athlete legislation

The history of labor relations and the role of student-athletes is a complicated one.

In 1953, the Colorado Supreme Court ruled in favor of Ernest E. Nemeth, who claimed that as a football player, he was an employee of the University of Denver and thus entitled to compensation for his injury.

In July 2009, Ed O’Bannon, a former UCLA basketball player, filed a class-action lawsuit against the NCAA and EA Sports for using his likeness without compensation. In 2013, EA reached a $40 million settlement with O’Bannon and his co-filers, but the suit remained intact.

One year later, the Ninth district court ruled in favor of O’Bannon’s class-action suit, but this decision was in-part overturned, with parts upheld, upon appeal. The Supreme Court declined to hear the case in 2015.

As most readers of this site should be well aware, former Northwestern quarterback Kain Colter, former UCLA linebacker Ramogi Huma, and United Steelworkers Political Action Committee President Tim Waters led efforts to unionize the Northwestern University Football team in late 2014.

The group created the College Athletes Players Association in January 2014, which has advocated specifically for improved medical insurance and increasing graduation rates across college athletics.

Earlier this month, I had the chance to speak with Colter on the phone.

“Huma has been at this for over two decades, and has been a pioneer in trying to improve the protections and benefits of college athletes,” Colter told Inside NU.

Colter said that the group’s goal was to hold the University accountable for “the promises about making sure your sports related medical expenses are covered, that you have an actual multi-year scholarship instead of just one year renewable, maybe a two-year renewable scholarship. Making sure your medical protection might extend past eligibility, all these different things with summer school, and disability insurance.”

Throughout the entire process of attempted unionization, people involved with Northwestern football tried to stop the union and encouraged players to vote it down. Eventually, the National Labor Relations Board ruled against the Northwestern Football Union.

They skirted the central question of whether athletes were employees of the University, instead basing their ruling on the potential impacts of ruling in Colter, Huma, and Waters’ favor. The board stated that such a change would not have increased “stability in labor relations.” Additionally, in the board’s decision, they mentioned how having one team unionize could create an unequal playing field when comparing it to other schools.

Understanding Illinois House Bill 3904

Rep. Welch’s bill mirrors the main goals of the newly passed California law.

“This is about student athletes being able to cash in on their own name, their own likeness, their own identity, and it’s important.” Rep. Chris Welch told Inside NU, “This goes beyond football and basketball, it extends to all collegiate athletics in four year universities whether public or private.”

This legislation would treat college athletes similar to olympic athletes, who are allowed to profit off their name, image, and likeness so long as it does not conflict with previously agreed upon contracts.

Rep. Welch was adamant in distinguishing his efforts from that of the Northwestern union.

“I think it’s important also to distinguish this from the salary issue. This is not a salary bill. This is purely about being able to profit off your own name, your own likeness, and your own identity,” he said.

The Illinois legislation allows student-athletes to sign individual deals for their name, image, and likeness rights, however, they are not allowed to sign deals that would conflict with group license deals that the Universities have signed.

For example, Northwestern student-athletes would not be able to sign individual shoe deals with Jordan brands because of a previously agreed upon contract with Under Armour. The legislation also allows student-athletes to hire “professional representation in relation to a contract or legal matter, including, but not limited to, representation provided by an athlete agent or legal representation provided by an attorney.”

While critics of legislation similar to Illinois House Bill 3904 have said that this compensation would be incredibly unequal, Rep. Welch believes otherwise.

“I know that there’s some volleyball players out there at Northwestern, some softball players from a team who had a great run last year that may be eligible for an endorsement deal,” he said. “Why shouldn’t they cash in from their own name, likeness, and identity when the Universities have?”

The bill, introduced on the Illinois House floor on September 30th, is now in committee. If passed, the bill will go into effect on January 1, 2023. Rep. Welch has since added 24 co-sponsors to the legislation.

This past Saturday, Illinois governor J.B. Pritzker announced his support of the legislation on WGN-720.

“Student athletes are the backbone of the college sports industry, and they deserve the same opportunity as everyone else to earn compensation based on the use of their name and their image and likeness,” Pritzker said.

UPDATE: Shortly after the publication of this article, Pritzker, Welch, and state senator Elgie Sims released a joint statement on today’s news:

“It’s clear that student-athletes deserve to have rights in a billion-dollar industry they helped build. After advocating for our legislation in Illinois, the NCAA took a welcome – though overdue – step forward to allow students to be compensated for their names and likenesses. We remain committed to being the voice of student-athletes in Illinois and will monitor this decision to ensure it is fully implemented. Today is a victory for student-athletes around the country who are fighting for fairness and equity, and we will continue to fight alongside you.”

Illinois universities, including Northwestern, also released a letter disagreeing with the bill and Pritzker’s support of it earlier today:

Differences in State Legislations

Illinois House Bill 3904 is nearly identical to California SB 206, but there are a few important differences between other states’ legislation. In Florida, they are actively considering legislation to accomplish similar things, yet their legislation would go into effect in July 2020. New York is considering a bill that would allow students to profit off their name, image, and likeness rights, but also gives student-athletes 15% of annual revenue from college athletic departments.

As this story and all of the moving parts within it continue to develop, we will keep you updated.