Questions and Answers on Law | Name, image, likeness … and confusion | Employment


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As of this writing, an Illinois General Assembly bill awaits Governor JB Pritzker’s signature. The bill allows college athletes in Illinois schools to profit from the use of their name, image or likeness.

What does this mean and what impact does it legally have on the rules of governance of the NCAA?

Let us try to disentangle this political melee of legal compensation.

The NCAA is a collection of over 1,100 universities, private and public, from across the country that have voluntarily come together as an “association.” Associations are people (or in this case, universities with athletic programs) who are linked to each other by a consensual contractual agreement to promote and perform a mission.

The mission of the NCAA is athletic competition among its member schools.

The NCAA has created, as many associations do, a set of operating rules. One of them is the restriction of college athletes to obtain monetary compensation from third parties, or the schools themselves, to participate in NCAA sporting events.

The primary exception to the compensation bar under NCAA rules is, of course, obtaining free tuition and possibly campus food or housing allowances provided to the athlete by their school.

In recent years, the idea has been raised in several states, with Illinois now joining this pass rush, allowing athletes to monetize their name, image and likeness. In other words, athletes should be allowed to earn money by selling products.

Pressure has increased on the NCAA to act by changing its own rules. The resilient NCAA board of directors has not moved quickly enough at the will of some states.

Can States Rescind NCAA Rules?

Sure. Well, maybe.

States are government entities with the authority to make laws binding on businesses (and nonprofit associations) operating in their state as long as the law does not violate that state’s constitution or the United States Constitution or any federal legislation.

A law passed in one state would be binding only on schools in that state and not on others. Thus, the California law dealing with NCAA athlete money is not binding in Connecticut.

However, within a state, such legislation could override any NCAA rule that is in conflict. Private organizations cannot have rules or restrictions that conflict with applicable state (or federal) law.

What if Congress passed a law authorizing compensation for college athletes?

To the extent that state law is contrary to federal law, federal law prevails under the United States Constitution which clearly states that federal law is supreme.

A federal law could impose uniform standards that are lacking in the mishmash of state laws that could otherwise trigger an imbalance in recruiting.

Some states ‘athlete approval laws might be tastier than others for the athlete browsing the schools’ national buffet to register.

The federal government would have the power to overturn NCAA rules because of its constitutional power to regulate interstate commerce – which NCAA sporting events arguably are. Indeed, the NCAA could challenge the laws of any state arguing that only Congress can regulate the NCAA rules for interstate sports competition. States are therefore prevented from doing so, argues the NCAA, unless Congress expressly authorizes them to do so.

Stay tuned on this.

The swimming competition for university paying athletes has started.

But not everyone runs in the same pool.

Brett Kepley is a lawyer with Land of Lincoln Legal Aid Inc. Send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820.

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