Name, Image, and Likeness: What is Going On?
As you may recall, roughly two years ago we witnessed an increase in the discussion surrounding “Name, Image, and Likeness” (“NIL”) in collegiate athletics. The catalyst stems from the landmark U.S. Supreme Court case of NCAA v. Alston and the subsequent adjustments the NCAA made to its NIL and amateurism policies in response. Shortly thereafter, Virginia entered the discussions by passing its own NIL law for the Commonwealth. For a detailed discussion regarding these key moments, check out my colleague’s article here. Virginia’s NIL law appears to be a permanent fixture within our legal landscape, at least for the foreseeable future. Therefore, it is worth getting up to speed on some updates involving the NIL as it relates to athletes, especially within Virginia.
What is Going On With The NCAA?
The symbiotic relationship between the NCAA and the states is quite intriguing. When the NCAA implemented its policy in 2021, it lifted its ban on NIL compensation of student-athletes. In doing so, it effectively left to the states and higher education institutions the ability to set forth rules in lieu of federal legislation to govern. The NCAA’s deference in this area did not, however, eliminate its right to maintain its own guidelines and regulatory power for its member-institutions. Several states have passed their own NIL laws and some appear to conflict with current NCAA guidelines. This begs the question: which rule should student-athletes and higher education institutions follow?
In an effort to resolve the issue, the NCAA instituted a memo earlier this year, admonishing that in cases of conflict, “institutions must follow NCAA legislation.” In the name of fairness, the NCAA further stated that those institutions that oppose a particular rule should utilize “the NCAA governance process to change the rule.” Moreover, “[u]nless and until the membership changes a particular rule, all schools, as part of a voluntary membership, are required to comply.”
The memo does not necessarily resolve all future issues. For example, the state of Texas purportedly instituted a law that not only has some conflicting provisions with the NCAA, but it also “includes a provision that says the NCAA and its conferences are prohibited from punishing any school that takes advantage of these new types of NIL activities.” Supposedly, if a Texas school is sanctioned by the NCAA for following a conflicting state law provision, the school is allowed to institute legal proceedings against the NCAA. I’m sure that this threat of litigation will spur the NCAA to push for congressional legislation to establish a standard. In the meantime, the NCAA appears to be putting together proposals for guidelines to vote on this upcoming January. As we continue to navigate this new terrain, a plethora of questions still remain. Will Congress enact standardized NIL laws? Will we see an influx of litigation against the NCAA by its member-institutions?
What is Going On With Virginia NIL?
Turning to Virginia, one significant update to note is the ability of high school athletes within the Commonwealth to profit from their NIL. At one point, it seemed as if this ability would have been a mere dream, due to proposed legislation within the General Assembly seeking to prohibit it. However, Governor Youngkin vetoed the bill in April 2022, which ultimately paved the way for the Virginia High School League (“VHSL”) to implement state-wide policies.  You may be asking, why did the VHSL need to implement policies when Virginia already enacted NIL laws? Simply put, Code § 23.1-408.1, which houses Virginia’s NIL law, is currently limited to collegiate sports; thus, leaving a hole for the VHSL to fill.
Notably, the VHSL’s policy mirrors Code § 23.1-408.1 in several respects. However, one difference worth noting is the respective notice provisions. For collegiate student-athletes, “[p]rior to executing an agreement concerning the use of his name, image, or likeness, a student-athlete shall disclose such agreement to the institution at which he is enrolled in a manner designated by the institution.” Code § 23.1-408.1(G). This enables institutions to discover whether a student-athlete’s potential agreement will conflict with an agreement held by the institution. Whereas high school student athletes must notify the appropriate officers within their school within 72 hours upon entering into their NIL agreement. Seemingly, prior notice is not required.
As you can tell, we are still in the infancy stages of this area of law and there are still more questions than answers at this point. That said, it should be interesting navigating this new realm of NIL within Virginia collegiate and high school sports. In the meantime, student-athletes and parents alike should do their due diligence on remaining current with the applicable laws and policies surrounding the NIL.
Diamond Royster is a Pender & Coward attorney focusing her practice on civil litigation, local government waterfront law and landlord/tenant matters.
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