by Austin Pottorff
Introduction
In 2019, LSU football experienced an unprecedented national championship season, led by star quarterback Joe Burrow.[1] Burrow became a college football icon, winning numerous awards,[2] breaking multiple records,[3] and leading LSU to a historic, undefeated season.[4] Burrow’s accolades made his name a very valuable brand across not only Louisiana, but the entire United States. In fact, sports economist David Berri determined that Burrow’s worth to LSU was over $3.8 million during the 2019 season alone.[5] Despite Burrow’s worth to LSU, he was unable to profit off of his fame and recognition while he was a student-athlete. This outcome was a result of the National Collegiate Athletic Association’s (NCAA) longstanding policy of forbidding collegiate athletes from profiting off their name, image, or likeness (NIL).[6]
NCAA’s ban on student-athletes profiting from their NIL has been a mainstay since the beginning of NCAA’s governance over college athletics.[7] That is, until July 1, 2021, when the NCAA adopted an interim policy allowing college athletes to profit from their NIL under certain conditions.[8] This policy requires student-athletes to follow their state’s NIL laws as well as their university’s NIL rules.[9] This policy also grants student-athletes who attend a university in a state that does not have NIL legislation the ability to participate in NIL deals.[10] Since then, many states have adopted NIL legislation,[11] including Louisiana.[12] Allowing student-athletes to profit from their NIL is new territory for the NCAA, states that have NIL laws, and student-athletes in states without NIL laws. This Piece will expand on Louisiana’s NIL law and the impacts this new policy could potentially have on Louisiana’s student-athletes and universities.[13]
I. Brief History of Lifting the NIL Ban
The NCAA has litigated student-athletes’ ability to profit from their NIL for many years.[14] Student athletes’ battle for NIL rights seemed futile until California passed the Fair Pay to Play Act in 2019.[15] This Act allows student-athletes who play at any university level, including at NCAA institutions, to profit from their name, image, or likeness.[16] California was the first state to pass a law allowing student-athletes to profit from their NIL.[17] Originally, the NCAA seemed as if it was going to challenge the validity of the Fair Pay to Play Act, calling the legislation “unconstitutional” in a letter to the California governor, but this ultimately did not happen.[18] California’s NIL legislation becomes effective on January 1, 2023.[19]
California’s game-changing bill prompted other states to join the NIL revolution, including Florida, which passed its NIL legislation in June 2020.[20] Unlike California, Florida’s law became effective on July 1, 2021, encouraging other states to follow suit.[21] Accordingly, Louisiana’s NIL bill also went into effect on July 1, 2021.[22] This legislation specifically addresses what Louisiana universities and student-athletes are and are not allowed to do regarding NIL deals.[23]
II. Louisiana’s NIL Law
Louisiana’s NIL law begins with the intent that “participation in intercollegiate athletics should not infringe upon an intercollegiate athlete’s ability to earn compensation for the athlete’s name, image, or likeness.”[24] In order to fulfill this initiative, the Louisiana Legislature gave both universities and student-athletes requirements, which are meant to allow student-athletes to profit from their NIL while also maintaining their focus on education.[25]
A. University Guidelines
Under this new legislation, Louisiana universities carry a large amount of the responsibilities relating to NIL. These responsibilities are structured as NIL guidelines that include what universities shall do, shall not do, and may do.[26]
- What Universities Shall Do
The Louisiana Legislature clearly outlines what universities shall do regarding NIL. This includes disclosing to a student-athlete or the athlete’s representative any relevant NIL contract term that conflicts with an already existing team contract, such as a team’s exclusive athletic apparel sponsor.[27] In addition, the university must “conduct a financial literacy and life skills workshop for a minimum of five hours at the beginning of an intercollegiate athlete’s first and third academic years.”[28] This workshop must contain, at the least, information on finical aid, debt management, and time management, as well as a recommended budget for grant-in-aid student-athletes “based on the cost of attendance for the current academic year.”[29] The last mandate a university must follow is to have its education management board adopt policies that implement Louisiana’s NIL law.[30]
- What Universities May Do
Louisiana’s new laws allow universities some discretion regarding two aspects of NIL. First, universities may prohibit a student-athlete from entering into an NIL deal if the deal conflicts either with an existing university sponsorship contract that is non-exclusive or with the university’s established values.[31] Second, universities may choose whether to require a “third-party entity engaging the athlete for a name, image or likeness activity to follow the protocols established” by the university, “including licensing protocols.”[32]
- What Universities Shall Not Do
Louisiana’s new NIL legislation also restricts universities power regarding a student-athlete’s NIL. Louisiana universities “shall not adopt or maintain a contract, rule, regulation, standard, or other requirement that prevents or unduly restricts an intercollegiate athlete from earning compensation for the use of the athlete’s name, image, or likeness.”[33] Additionally, Louisiana universities and their agents shall not “compensate or cause compensation” to current or prospective student-athletes for their NIL.[34] These two restrictions seem to work together. For instance, a university and its agents cannot adopt a policy that would prevent or unduly restrict student-athletes from receiving compensation for their NIL; however, this compensation cannot be provided, directly or indirectly, by the university or its agents.[35] Therefore, Louisiana’s law effectively prohibits universities from interfering at all in student-athletes’ compensation for their NIL.[36]
Louisiana universities are forbidden from using an athletic booster, directly or indirectly, to compensate current or prospective student-athletes for their NIL “as a recruiting inducement or as a means of paying for athletics participation.”[37] Universities are also restricted from using a student-athlete’s NIL contract as a reason to change a student-athlete’s scholarship, grant-in-aid, or athletic eligibility.[38] Both of these restrictions prohibit using NIL contracts as a way of encouraging a student-athlete’s potential enrollment at the university.[39]
The final two restrictions are more procedural in nature. First, Louisiana universities are prohibited from preventing or restricting student-athletes from obtaining an attorney or agent for the purpose of profiting from their NIL.[40] Lastly, a university shall not implement Louisiana’s NIL guidelines until the university’s management board adopts the new NIL policies.[41]
B. Student-athlete Guidelines
Louisiana’s NIL legislation also has requirements for student-athletes to follow. The Louisiana Legislature intended to allow student-athletes to profit from their NIL while still receiving significant educational opportunities.[42] Therefore, the student-athlete requirements attempt to balance both of these principles.[43]
- What Student-athletes Shall Do and May Do
The legislation does not require student-athletes to do as much as universities. The only thing student-athletes must do is disclose their NIL deals to their university, in the manner determined by the university.[44] Additionally, student-athletes are given the option to decide whether they want to “earn compensation for use of the athlete’s name, image, or likeness.”[45] This compensation cannot be more than the market value of the use of the student-athlete’s NIL.[46] The remaining guidelines concern what student-athletes shall not do.
- What Student-athletes Shall Not Do
The restrictions on student-athletes’ NIL activities are not as severe as one may assume. One restriction is that student-athletes cannot be paid for their NIL “for the endorsement of tobacco, alcohol, illegal substances or activities, banned athletic substances, or any form of gambling including sports wagering.”[47] Student-athletes also cannot use a university’s “facilities, uniforms, registered trademarks, products protected by copyright, or official logos, marks, colors, or other indicia in connection with the use of the athlete’s name, image, or likeness” unless the university expressly allows.[48] Another restriction is that a student-athlete cannot enter into an NIL contract if the term of the deal conflicts with a term in the student-athlete’s team contract.[49] The last restriction is that a student-athlete cannot enter into an NIL contract if the contract term lasts “beyond his participation in an athletic program at a postsecondary education institution.”[50]
Louisiana’s NIL legislation prescribes several regulations that universities and student-athletes must follow. These universities and athletes have never had to follow such regulations before, since student-athletes profiting from their NIL was prohibited until now. These new rules on NIL are likely to raise many new issues that will need to be addressed in order for student-athletes profiting from their NIL to run smoothly.
III. Possible Issues Relating to Louisiana’s NIL Legislation
As with any new legislation, issues are sure to arise. In the case of Louisiana’s new NIL legislation, however, this law is not just a revision, but the first of its kind in the state.[51] Therefore, the issues created by the legislation will be unprecedented. There are, however, some issues that Louisiana universities and student-athletes are more likely to face.
A. Potential University Issues
Universities will need to develop a procedure for student-athletes to disclose their NIL deals to the university.[52] This process could be difficult to monitor because NIL deals may happen spontaneously and, therefore, not be reported to the university until after the student-athlete’s obligation to the third-party is complete.[53] For example, imagine a scenario in which a student-athlete is eating in a restaurant and the owner asks the student-athlete to post her meal on Instagram promoting the restaurant and in exchange, the owner will give the meal to the athlete for free. Many situations such as this one are likely to take place. Therefore, universities will have to develop procedures or processes for student-athletes to disclose their NIL deals efficiently to accommodate spontaneous NIL deals.[54]
Another issue universities could face involves having to disclose every team contract that conflicts with a student-athlete’s NIL deal. This will require universities to actively review every contract its players enter into to see if there are any conflicts.[55] This may prove to be very difficult considering, again, the spontaneous nature of some NIL deals.[56] Additionally, university athletic teams normally have a large number of team contracts with their sponsors.[57] This mandate will require universities to constantly check through their long lists of contracts to look for conflicts.[58]
The last potential issue is the proper advisement of student-athletes.[59] While universities are tasked with providing a life-skills workshop for student-athletes, there is no real direction on how much of that class should be directed toward learning how to properly enter into NIL contracts.[60] The first few times the a university puts on such a workshop are likely to be insufficient to properly train student-athletes in NIL.[61] This, in turn, contributes to an issue that student-athletes will likely have to face.
B. Potential Student-athlete Issues
Student-athletes will likely have to deal with many issues relating to NIL.[62] However, only two issues will be discussed in this Section. The first is that student-athletes will have to be fully aware of Louisiana’s NIL law in order to properly participate.[63] The problem with this is that these students are not attorneys, they are students. Student-athletes already have a very full plate by handling both their education and their athletic responsibilities. Universities must thoroughly explain this law during the life-skills workshop, or student-athletes risk violating the new laws.[64]
The second issue deals with student-athletes having to ask permission to use any of their university’s intellectual property.[65] Most student-athletes likely enjoy wearing the colors or logos of the university for which they play. However, if a student-athlete happens to be wearing a university shirt when he is asked to enter into a spontaneous NIL deal, she will not be allowed to accept that deal.[66] This is because the student-athlete must first get permission from the university.[67] This could potentially hinder student-athletes from obtaining NIL deals just for supporting their university.
Conclusion
Louisiana’s new NIL legislation is a game-changer for university athletics. For universities and student-athletes to fully benefit from this change, many issues will need to be addressed. While this Piece discusses only a few potential issues that may arise because of the new NIL law, the Louisiana Legislature should carefully monitor the implementation of this legislation in order to see what other issues arise.
[1] College Football Championship History, Nat’l Collegiate Athletic Ass’n (Jan. 11, 2022), https://www.ncaa.com/news/football/article/college-football-national-championship-history [https://perma.cc/V2Y5-R457]; Andy Wittry, Joe Burrow: College Football Career, Stats, Highlights, Records, Nat’l Collegiate Athletic Ass’n (Jan. 30, 2022), https://www.ncaa.com/news/football/article/2021-09-15/joe-burrow-college-football-career-stats-highlights-records [https://perma.cc/8EXN-F3Q3].
[2] Andy Wittry, supra note 1.
[3] See id.
[4] Id.
[5] Kelsey Trainor, How Much Money Is Joe Burrow Worth to LSU? Approximately $3.9 Million, Fansided, https://fansided.com/2019/12/15/joe-burrow-worth-lsu-football/ [https://perma.cc/JTC5-TLSX] (last visited Jan. 31, 2022).
[6] Nat’l Collegiate Athletic Ass’n, 2019-2020 Division I Manual, art. 12.1.2.1.1 (2019); Nat’l Collegiate Athletic Ass’n, 2019-2020 Division II Manual, art. 12.1.2.1.1 (2019); Nat’l Collegiate Athletic Ass’n, 2019-2020 Division III Manual, art. 12.1.2.1.1 (2019).
[7] Luke Tepen, Pay to Play: Looking Beyond Direct Compensation and Towards Paying College Athletes for Themselves, 65 Wash. U. J.L. & Pol’y 213, 213 (2021).
[8] NCAA Name, Image, Likeness Rule, Next College Student Athlete, https://www.ncsasports.org/name-image-likeness [https://perma.cc/T9FN-58DB] (last visited Jan. 31, 2022).
[9] Id.
[10] Id.
[11] Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, New Mexico, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, and Texas. NCAA Name, Image, Likeness Rule, supra note 8.
[12] See id.
[13] See generally Act No. 479, 2021 La. Acts.
[14] See generally NCAA v. Bd. of Regents, 468 U.S. 85, 88 n.1, 98 (1984).
[15] Fair Pay to Play Act, Cal. S.B. 206 § 2(a)(1), 2019-20 Leg. (Ca. 2019).
[16] Id.
[17] NCAA Name, Image, Likeness Rule, supra note 8.
[18] Chris Bumbaca & Steve Berkowitz, NCAA Sends California Governor Letter Calling Name, Likeness Bill ‘Unconstitutional,’ USA TODAY (Sept. 11, 2019, 10:51 AM), https://www.usatoday.com/story/sports/ncaaf/2019/09/11/ncaa-sends-letter-callingcalifornia-likeness-bill-unconstitutional/2284789001/ [https://perma.cc/B5G8-B47Q].
[19] NCAA Name, Image, Likeness Rule, supra note 8.
[20] Id.
[21] Id.
[22] Id.
[23] See generally Act No. 479, 2021 La. Acts.
[24] La. Rev. Stat. § 17:3701 (2021).
[25] Id.§ 17:3701.
[26] See generally Act No. 479, 2021 La. Acts.
[27] La. Rev. Stat. § 17:3703(J)(2).
[28] Id. § 17:3703(M)(1).
[29] Id. § 17:3703(M)(2).
[30] Id. § 17:3703(N)(1).
[31] Id. § 17:3703(E)(1).
[32] Id. § 17:3703(E)(3).
[33] Id. § 17:3703(B).
[34] Id. § 17:3703(C).
[35] See generally id. § 17:3703(A) & (C).
[36] See generally id. § 17:3703(A) & (C).
[37] Id. § 17:3703(C).
[38] Id. § 17:3703(B).
[39] See generally id. § 17:3703(B)–(C).
[40] Id. § 17:3703 (F)(1).
[41] Id. § 17:3703(N)(2).
[42] Id. § 17:3701.
[43] See generally Act No. 479, 2021 La. Acts.
[44] La. Rev. Stat. § 17:3703(K).
[45] Id. § 17:3703(A)(1).
[46] Id.
[47] Id. § 17:3703(E)(2).
[48] Id. § 17:3703(E)(3).
[49] Id. § 17:3703(J)(1).
[50] Id. § 17:3703(L).
[51] NCAA Name, Image, Likeness Rule, supra note 8.
[52] La. Rev. Stat. § 17:3703(K).
[53] See generally id.; see generally Joshua Levey, Name Image & Likeness – How Laws Are Evolving for NCAA Athletes’ Compensation, Law In Sport (Nov. 12, 2021), https://www.lawinsport.com/topics/item/name-image-likeness-how-laws-are-evolving-for-ncaa-athletes-compensation [https://perma.cc/87SX-7FDK].
[54] See generally La. Rev. Stat. § 17:3703(K); see generally Levey, supra note 53.
[55] See generally La. Rev. Stat. § 17:3703(K).
[56] See generally id.; see generally Levey, supra note 53.
[57] See generally La. Rev. Stat. § 17:3703(K).
[58] See generally id.
[59] See generally id. § 17:3703(M)(1).
[60] See generally id.
[61] See generally id.
[62] See generally Act No. 479, 2021 La. Acts.
[63] See generally id.
[64] See generally La. Rev. Stat. § 17:3703(M)(1).
[65] See generally id. § 17:3703(E)(3).
[66] See generally id.
[67] See generally id.