Michael Feblowitz is a 2020 graduate of Boston College Law School, cum laude, and an experienced author on the topic of NIL. Feblowitz was awarded First Place in the 2020 Sports Lawyers Association Student Writing Competition for his article, “One NIL: The Impact and Constitutionality of the Fair Pay to Play Act.” Prior to law school, Feblowitz graduated magna cum laude from Wharton’s undergraduate program in business. Feblowitz can be reached at firstname.lastname@example.org.
California State Senator Nancy Skinner was clear about the purposes of the Fair Play to Pay act when she first unveiled the proposed legislation: “For too long, college athletes have been exploited by a deeply unfair system,” Skinner explained. “Athletic talent has value, and college athletes deserve to share in that value.” These sentiments remained at the forefront as the proposal moved through the California state legislature and eventually became law in September of 2019.
Legislation in Colorado and Florida followed soon after, and lawmakers in those states espoused similar justifications for their proposed bills. In reference to her state’s bill, Colorado Representative Leslie Herod explained that “student athletes have the right to share in the wealth that their presences bring into institutions of higher education.” Similarly, Florida Representative Chip LaMarca praised his state for changing the dynamic of college sports, commenting that “[w]earing a school’s jersey shouldn’t mean choosing between using your talent and earning extra money to support your education.”
As the push to enact uniform federal legislation has gained momentum, this core aim—allowing athletes to share in the value they create—is in danger of being left behind. Other concerns, including potential for recruiting abuses, shortfalls of athletic department budgets, and competitive imbalances between programs, have crept to the forefront of legislative debate.
Prior to enacting any uniform law, Congress must answer a simple but critical question: what is the purpose of NIL legislation? If the goal is merely to ensure that the NCAA can continue to maintain full control over college sports while granting a narrow carveout for individual NIL use, such legislation can reflect that aim. The NCAA and Power 5’s proposals do just that. These plans prioritize the limitation of competitive abuses, and as a result they create a highly restrictive framework for athletes seeking to monetize their NIL rights.
If, however, the goal is, indeed, for athletes to be able to meaningfully share in some of the value they help to create, national NIL legislation must take a dramatically different form. Such a law should be focused on enabling athletes to take their NIL rights to the marketplace. Everything else—fears of recruiting abuses, concerns over competitive balance, and so on—should be addressed, but must remain secondary concerns as the legislation is drafted.
The enacted laws of California, Colorado, and Florida provide helpful starting points, but despite their purported aims, the laws contain enough ambiguity to cause concern. Under each of these legislative regimes, it is likely that athletes’ ability to earn compensation from use of their NIL rights will be sufficiently undermined, perhaps even diminished to the point where the benefits to the students hardly seem worth the trouble of creating an NIL framework. In order to craft a piece of national NIL legislation that allows college athletes to share meaningfully in the value they help create, Congress must address a myriad of issues. Two particularly pressing problems are explored here.
1. Congressional legislation should anticipate conflicts between student NIL deals and university sponsorships and set clear parameters for how to handle them.
Each enacted piece of state NIL legislation contains some clause barring students from accepting endorsement deals that conflict with existing team sponsorship agreements. Colorado’s law, for example, forbids athletes from “enter[ing] into a contract providing compensation to the student athlete if the contract conflicts with a team contract of the team for which the student athlete competes.” NIL laws in California and Florida contain nearly identical provisions, and the NCAA and Power 5 proposals similarly ask that athletes be barred from entering endorsements that conflict with institutional sponsorship deals.
This approach to regulating NIL activities demands close scrutiny because it threatens to undermine athletes’ ability to earn any revenue from use of their NIL rights. As written, the laws give schools near-total control. If, for example, a university football program does not want its athletes to sign a sponsorship agreement with a sports drink company, the program can find a company to become the official sports drink provider of the team. By the letter of the law, athletes would then be barred from obtaining any sponsorships with competing sports drink companies.
If an athlete can be boxed out of sponsorship agreements for the low-hanging fruit of the sports world—apparel, equipment, food/beverage, and so on—one might wonder what opportunities, if any, are left. As written, these state laws allow for the possibility of a nefarious school, one that strikes sponsorship deals at nominal fees across all industries solely to prevent players from having similar deals. Even ignoring this possibility, giving schools what amounts to a right of first refusal severely limits what an athlete might earn. The overlap between brands that want to sponsor college teams and brands that want to sponsor college athletes is enormous. A well-crafted national NIL bill should anticipate this friction and set forth clear parameters so that it might be avoided.
2. Congressional legislation should grant athletes ability to use school trademarks alongside their names, images, and likenesses.
For most athletes, the value of their publicity rights will be inextricably intertwined with their status on a college team. If athletes are to truly share in the value they are helping to create, they must then be allowed to leverage this status. This is an important dynamic. Without the athletes, college sports programs would of course be of little value. Similarly, without a collegiate athletics program, the average student’s NIL rights likely would not be worth much. This is particularly true for those athletes who are in sports unlikely to garner large-scale media attention and those athletes who may be in widely watched sports but are far down on depth charts.
To illustrate this point, consider, for example, the typical collegiate tennis player, golfer, or volleyball player who wants to earn compensation by giving lessons in his sport. An offering to the marketplace will mean far more if that athlete can identify himself as a member of a college team and use his school’s name, colors, and logo when he advertises these lessons. Similarly, if a women’s collegiate basketball player wants to earn compensation from selling autographs, a signed photograph of her in game action—in her school’s uniform—would almost certainly command a higher price than a signed piece of paper or a signed photo with no indicia of the collegiate program with which she is affiliated.
This is a predictable situation, and without guidance from Congress, tension between universities and their athletes is almost certain to arise. Likely, university athletic departments will want to limit the athlete’s use of any school marks while athletes will frequently seek to use them. National NIL legislation should anticipate and address this scenario. Perhaps the issue can be dealt with through the lens of copyright fair use, or perhaps Congress can explicitly grant athletes the ability to use certain school marks without any fear of repercussions.
Without further guidance, both issues will predictably arise. With Florida’s NIL law set to go into effect on July 1, 2021, there is undoubtably substantial time pressure to create a national NIL scheme. Despite this predicament, if Congress is determined to construct a national framework for athlete NIL rights, it would be well served to take the time necessary to address these anticipated issues. It would be a true shame if Congress enacts a law that merely aspires to allow college athletes to share in the value they create but falls short of truly giving them the ability to do so.
 Press Release, Senator Nancy Skinner, Senator Nancy Skinner Announces “The Fair Pay to Play Act” (Feb. 5, 2019), https://sd09.senate.ca.gov/news/20190205-senator-nancy-skinner-announces-%E2%80%9C-fair-pay-play-act%E2%80%9D [https://perma.cc/Y8TP-Q2B6].
 Cal. Educ. Code § 67456 (2020); see Alan Blinder, N.C.A.A. Athletes Could Be Paid Under New California Law, N.Y. Times (Sept. 30, 2019), https://www.nytimes.com/2019/09/30/sports/college-athletes-paid-california.html [https://perma.cc/EPB2-M3RH].
 Col. Sess. L. 20–123; Kelly Lyell & Steve Berkowitz, Colorado Bill Allowing College Athletes to be Paid Passes Both Houses of Legislature, Fort Collins Coloradoan (Mar. 4, 2020), https://www.coloradoan.com/story/sports/college/2020/03/04/colorado-legislature-passes-bill-allowing-athletes-compensated-name-image-likeness/4956055002/ [https://perma.cc/WV7Q-CMX9].
 Fla. SB 646 (2020); Renzo Downey, Legislature Passes Landmark College Athlete Pay Bill, Florida Politics (Mar. 14, 2020), https://floridapolitics.com/archives/323384-legislature-passes-college-athlete-pay-bill [https://perma.cc/B8YF-B3CU].
 See Protecting the Integrity of College Athletics: Hearing Before the Senate Comm. on the Judiciary, 116th Cong. 1–2 (2020) (statement of Dr. Mark Emmert, President, Nat’l Collegiate Athletic Ass’n).
 See Ross Dellenger, NCAA Presents Congress With Bold Proposal for NIL Legislation, Sports Illustrated (July 31, 2020), https://www.si.com/college/2020/07/31/ncaa-sends-congress-nil-legislation-proposal [https://perma.cc/VJ8A-ZQDY]; See also Ross Dellenger, Proposed NCAA NIL Legislation Is A Restrictive First Step for Student-Athletes, Sports Illustrated (July 17, 2020), https://www.si.com/college/2020/07/17/ncaa-proposed-name-image-likeness-legislation-student-athletes [https://perma.cc/3M3Y-DUZJ].
 Col. Sess. L. 20–123 § 2(3)(a). The law defines “team contract” as a “contract between an institution … or an intercollegiate athletic team of an institution and another entity” that “relates to the activities of an athletic team of the institution.” Id. at § 2(1)(h).
 See Cal. Educ. Code § 67456 (e)(1) (2020); Fla. SB 646 § 2(h); Dellenger, Intercollegiate Amateur Sports Act, supra note 6; Dellenger, Proposed NCAA NIL Legislation, supra note 6.