Student-Athlete NIL: Federal and State Legislative Updates and Disparities, Litigation Trends, Use of School's IP, Pay-to-Play

Description

In 2015, the Ninth Circuit changed the playing field for student-athletes when it held that NCAA rules prohibiting the athletes from leveraging their NIL for financial compensation violate federal antitrust laws. Last year, in June 2021, the Supreme Court unanimously held that the NCAA's prohibition of the payment of "other educational benefits," a form of pay to play, violated the antitrust laws. As a result, the NCAA changed its policy to permit athletes who receive NIL payment to maintain NCAA eligibility, but in its new Constitution has maintained a prohibition on pay to play.

Currently, 28 states have adopted student-athlete NIL laws. More states have proposed or pending legislation. However, not all state laws are the same. As a result, these differences have led to disparities within the athletic conferences and given some universities an advantage in recruiting athletes.

Similarly, some schools have adopted policies that reward athletes who maintain their eligibility and a certain GPA. There is no federal legislation yet. Several bills have been proposed but have stalled in committee. Consequently, the restrictions and permitted NIL activities vary from state to state and school to school. Further, questions remain about how the NCAA will enforce its policy.

As state laws, litigation, enforcement, and NCAA policy continue to evolve, athletes, universities, donors, and sponsors must be flexible so they can adapt when circumstances change.

Listen as our authoritative panel of IP attorneys examines the recent NIL developments, including legislative updates and litigation trends. The panel will also address pay-to-play concerns and issues related to using a university's IP. The panel will discuss lessons from the first year of NIL and how the recent developments and lessons inform counsel going forward.