The college sports landscape is changing, especially for athletes, who are slowly gaining ground in their long battle to control, and potentially profit from, their name, image and likeness — or NIL.
New York is waiting to see if Governor Kathy Hochul signs a bill passed this year to authorize NIL legislation, which would make it the 30 state to do so.
Bennett Liebman, who served as deputy secretary for gaming and racing in the Cuomo administration in addition to many other government roles, is a government lawyer in residence at Albany Law School, where the Government Law Center has just released an analysis of New York’s NIL future.
For people who haven't followed the issue, can you explain the importance of this NIL change within NCAA governance?
Well, for years, the NCAA had limits on professionalism, you know, basically it prevented the student athletes from obtained from using their name, image and likeness, to obtain revenue for themselves. The notion was that you created a more competitive atmosphere if you if kept out all images or possibilities of professionalism in the sport, so that while colleges and coaches earn millions from college sports, the student athletes received nothing.
And since this change, have athletes been able to profit?
Yes, they have and it's constantly evolving. Every day brings marine brings, nor more news on this, what we call the name, image and likeness brought the NIL front. We’re talking, you know, hundreds of millions of dollars here.
I remember interviewing former UCLA basketball player Ed O'Bannon, years ago now, and he was at the center of a court case that helped to change the NIL landscape. Why was the change eventually put into place? I mean, what broke in terms of the student-athletes and the NCAA?
Pressure from media, athletes and court cases threatening the NCAA. You can look at this issue in a lot of ways, but the NCAA after getting an especially devastating decision in June of 2021, in the Austin case from the Supreme Court decided to let NIL become the rule in their jurisdiction.
And my understanding is that many states had preemptively passed laws to this and even before the NCAA changed its own rule.
Yeah, that also puts added pressure on the NCAA to take some action.
Why are there separate state laws?
Because we don't have federal legislation on this. So everybody acted individually, and certainly in 2019, when California started this, there was no indication that the NCAA would take action on this.
Now, is there a lot of difference between what individual states are doing?
There is a core of generally followed precepts, but nobody is exactly the same.
And it's not just college students, right? I mean, potentially high schoolers could also benefit from their NIL now.
Yes, that's certainly true. But that, again, is totally state by state. In New York it’s even stranger because it depends, you know, there are four different high school athletic associations in the state. There's basically the public school one, which governs most of the state, other than New York City, the Catholic schools in New York City and certain independent schools. But everybody, you know, even among, even in New York State, there's no uniformity.
Is that creating problems?
I don't know if it's creating problems, it just makes for a very messy situation. And, you know, arguably, if you're a talented athlete in New York City, high school and you want to benefit from NIL, maybe you move out of New York City, and go to a school outside of New York City where your NIL benefits are greater.
So, let's drill down into the situation in New York. Now, as we speak here, a bill has been passed by the legislature but it's not been sent yet to Governor Hochul right?
That's correct.
What's your understanding of the holdup there?
It's New York State, we now have this, this is a different issue. But we now have a situation where bills passed the legislature in May or June, and don't get acted upon by the governor until months and months later. So, I mean, we're talking here in early September and the fact is that only about 60% of the bills that have been passed by the legislature, and the legislature has been gone now for nearly three months have been acted on by the executive, there are probably about, you know, close to 500 bills that have passed the legislature that have not been acted on by the governor. That's not, you know, that's the way things have worked out over the last 15 to 20 years in New York. Governors take their time in signing legislation. That may be especially true this year, when there's a gubernatorial race, it's basically, almost a precept that governors in election years don't like to veto legislation. So, you may be seeing more controversial decisions being made after, you know, after the election.
Well, with respect to this particular law, what are Governor Hochul’s options and what does she stand to lose or worry about?
I am not quite sure, it's a difficult issue, in a lot of ways, because it changes every day. It passed both houses overwhelmingly, but there are issues as to whether or not this is this is well written legislation. There's an issue as to whether it's needed now the NCAA has allowed NIL. In two states with major football powers, Georgia and South Carolina have repealed their NIL statutes because they think that it makes it harder for their college football teams to recruit. So, there's this feeling, at least right now, that you know, we're talking Syracuse here, that more NIL restrictions make it harder for a team like, a college like Syracuse to recruit against all its rivals. So, there are issues, there are questions about how well this actual law is written. So, you know, it also could be considered, if it's considered popular, this might also be some legislation that would be signed by the Governor as almost as a you know, as a way of part of a campaign related bill signing.
In other words, if I'm a 17-year-old high school senior, and I'm an all-state running back, and I have my sights set on the NFL, and I'm looking at where to play in college, a place with, you know, looser NIL restrictions or in other words, a place I would make it easier for me to potentially profit off my name, image and likeness, might be more appealing to go to?
Yes. Yes. It also arguably, if you've got one of the one of the major athletic schools in the state and right now really that's really Syracuse right now. You want to be in a position to be able to maximize your ability to recruit.
A part of this is a long-running discussion about payment for players. How does that factor into this? I mean, are we anywhere closer to college athletes drawing a paycheck in addition to profiting from their own likeness?
It’s getting very close to that. We have we are very close to a pay for play situation. That we really see, you know, major boosters at colleges across the country, working together to maximize payments to the athletes to help out their sports teams. We just saw an article about a month ago, quoting the Ohio State football coach saying that they needed $13 million in NIL sponsorship in order to maintain their team to the next year. So, we're talking a position now where it's very, very close to paying top college athletes to play for specific teams.
And you see that as inevitable?
I mean, arguably, a federal legislation could make this more rational, but it really looks very close to that. I mean, we've started this ball rolling and it's going to be very hard to stop it.
Well, where does that leave the NCAA, which is in charge of billions of dollars and TV contracts and so on? But it's all predicated on the idea of amateurism among its competitors.
Well, the NCAA I think probably is doing its best to try to get federal legislation, but we're at a time where we're dealing with more and more free for all among the individual colleges. We have, we were having, you know, we don't have an arms battle. We have an NIL battle.
