Listen to this articleFollowing the 2021 U.S. Supreme Court decision, college athletes have an unprecedented opportunity to leverage their name, image, and likeness — creating an intersection between collegiate athletes in the commonwealth and legal practitioners.
The decision was unanimous in NCAA v. Alston She found that college athletes could be compensated for their name, image and likeness — or NIL — and noted the “complicated relationship” American colleges and universities have with sports and money.
Prior to the ruling, college athletes were prohibited from accepting any compensation from the NIL, be it from appearances, autographs or endorsements.
The ruling also creates an intersection between student-athletes, athletic departments and attorneys navigating a new and rapidly changing practice area, taking into account state-level laws and NCAA policy.
Richmond attorney Tricia Dunlap, whose firm Dunlap Law has a nascent NIL practice, told Virginia Lawyers Weekly that the biggest challenge facing lawyers is “keeping up with a very dynamic legal landscape.”
“Some states moved quickly to allow student-athletes to sign NIL deals because state legislators saw opportunities for state universities to get recruiting assistance,” Dunlap said.
Noting that the NCAA remains “the sole and final arbiter of student-athlete eligibility and institutional eligibility,” Dunlap said attorneys must be familiar with navigating the laws and NCAA policy while ensuring their clients maintain their eligibility.
“The NCAA recently announced that athletes who engage in NIL deal terms allowed by state law but violate NCAA guidelines will lose eligibility,” she said. “That’s why lawyers need to understand the laws and NCAA rules.”
Virginia law operates with a point
In Virginia, NIL is governed by Va. law. § 23.1-408.1, which states that no institution, athletic association, athletic conference or other organization can prevent a student-athlete from receiving compensation for his or her name, image or likeness.
The law also prohibits those organizations from preventing a student-athlete from obtaining legal representation for an NIL case.
There are some exceptions regarding NIL deals that student-athletes are permitted to sign, including if the deal is “in conflict with an existing institutional agreement” or if the arrangement relates to an area specifically defined in the law, including gambling, alcoholic beverages and controlled substances.
The measure was signed into law by Gov. Glenn Youngkin in 2022 after two identical bills passed in the General Assembly with broad bipartisan support. The bills, SB 223 and HB 507, were sponsored by Sen. Jeremy McPike and Del. Terry Austin, respectively.
The legislation is “fairly tame” compared to some of the more ambitious legislation in other states, said Norfolk attorney William Palmer, who is part of the Kaufman and Cannolls sports and entertainment practice.
“Virginia’s law essentially mirrors the basic structure and limitations outlined in the NCAA regulations that were then passed.” NCAA v. AlstonPalmer said.
Virginia is also one of a growing number of states that allow high school athletes to enter nothing deals. The Virginia High School Association passed the no-risk policy earlier this year by a vote of 32-2, providing guidance to public schools in the commonwealth on the issue.
The guidelines make NIL deals “highly unlikely” for student-athletes, Dunlap said.
“A high school athlete’s NIL should be so popular that it has notable value even if it is separated from his school, team and school mascot,” Dunlap said. “That’s a high goal — but maybe it will happen.”
Palmer noted that the new policy represents “an extension into high school sports” and that the market for such deals remains unclear.
“The new guidelines, as well as the laws surrounding contracting with minors, could present interesting legal challenges and potential traps for the unwary,” Palmer said.
Lawyers as players
Ashley Shira Davis, associate athletic director for compliance at Virginia Commonwealth University, told Lawyers Weekly that her experience with NIL has been “very positive.”
But she noted there are concerns that student-athletes could be taken advantage of when it comes to contracts.
“It is generally understood that many student-athletes do not seek legal advice or advice on contracts they agree to sign, often because they do not believe they need to because the deals are often gifts in kind,” Chira Davis said.
Although that has not happened yet, to her knowledge, Shira Davis said the lack of counseling could lead to breach of contract issues and “further hardship” for student-athletes.
Attorneys who represent student-athletes in NIL-related matters serve as “advocates and representatives” for the athletes and must have a strong understanding of intellectual property principles and licensing deal structures and have strong contract drafting skills, Dunlap said.
“It is essential that we provide students with a written contract in plain English so they can easily understand it and comply with its terms,” Dunlap said. “Student-athletes have a lot at stake in these deals — they could lose their eligibility. Making mistakes can ruin promising careers.
In addition to simple legal representation, Dunlap said it’s also important for attorneys to understand the student-athlete’s experience. One of the lawyers who joined her firm’s NIL practice next summer played baseball at the Division I level, “which gives him a perspective that few lawyers share,” she noted.
She added that student-athletes should reach out to counselors as early as possible in the decommissioning process — sometimes as soon as they have committed to their university. This way, athletes and their advisors can begin to build a relationship and develop a strategic plan.
The key to “any comprehensive non-failure programming” is education, according to Shira Davis.
“This education generally begins with a general understanding of an individual’s right to publicity and what rights are waived when engaging in a DNR, and then grows to an understanding of contract terms and what phrases like ‘in perpetuity’ and ‘intellectual property’ mean.” She said.
Formulate new rules
Dunlap noted that this year Congress has held several hearings on the NIL and has several bills pending. There is currently no national zero-risk legislation, leaving a patchwork of state laws for attorneys to navigate.
“Every day, something changes in this landscape. Right now, it’s the Wild West,” Dunlap said, adding that the NCAA is expected to adopt new proposals in January aimed at strengthening student-athlete protections regarding NIL rights.
Palmer said federal legislation would likely be similar to Virginia’s.
“If/when federal legislation is passed, I think it will look similar and not the more expansive and ripe for abuse legislation in other states,” Palmer said.
One potential area addressed by federal legislation is international student-athletes, who are barred from most NIL activities due to visa restrictions. Shira Davis said it “remains a big problem” and that federal legislation has been introduced regarding the process.
The NCAA’s current interim policy explicitly states the ban on the no-holds-barred policy. However, there is a significant gray area outside those guidelines, which is exacerbated by the patchwork of legislation. Shira Davis said patchwork “sometimes creates confusion when states allow or prohibit different things.”
“Clarity in the space on both fronts, the law and NCAA regulations, would help institutional staff and attorneys alike help student-athletes and understand where the lines lie,” Shira Davis said.
Despite the challenges NIL workers face, Shira Davis said she believes it has been an “overall positive addition” to the collegiate athletics landscape.
“It provides an opportunity for student-athletes to gain education, knowledge and real-world experience on a much larger scale than they have been allowed to do in the past,” Shira Davis said. “The importance of these experiences cannot be overstated.”
North Carolina Lawyers Weekly reporter Heath Hamacher contributed to this story.
The recent implementation of the NIL (Name, Image, and Likeness) law has revolutionized the landscape of college athletics, effectively integrating it with the legal practice. This game-changing law allows college athletes to profit from their own name, image, and likeness, providing them with opportunities to endorse products, earn compensation for their social media presence, and engage in other commercial activities. As a result, legal professionals are now finding themselves at the forefront of navigating the complex legal and financial implications of this new era in college sports. The NIL law has not only transformed the way college athletes are able to monetize their talents but has also given rise to a multitude of legal considerations that require expertise in sports law and contract negotiations. This integration of athletics and legal practice represents a significant shift in the collegiate sports landscape, and as such, it is crucial for legal professionals and athletes alike to understand and adapt to the new opportunities and challenges that come with it.