Seismic change coming to college sports. What to know about NIL, NCAA, Supreme Court case

Zach Osterman
Indianapolis Star

BLOOMINGTON – The national movement around name, image and likeness policy in NCAA athletics appears to be reaching a crescendo.

A Supreme Court decision handed down Monday further layered the discussion.

The coming days and weeks might chart the course for foundational changes to college sports as we know them.

What happens next? And what does all this mean for Indiana’s NCAA schools? An explainer.

Where does NIL stand?

In short, it’s coming.

There has been a fair amount of buck passing on the issue in the past year, after years preceding that of governing bodies dragging their feet on NIL. Athletes’ right to profit off their likeness has been challenged in some fashion in several different ways, both through the courts and, more recently, by states’ laws.

A majority of states now have some version of NIL legislation in the pipeline. Close to 20 have laws on the books, and six of those go into effect July 1. More states could join that group — right now populated mostly by states in the SEC footprint — in the weeks to come.

More:IU athletes run afoul of current NIL rules as NCAA waits to make beneficial changes

More:Notre Dame won't allow players' likenesses in video games until NIL rules are established

Indiana lagging behind

NIL is going to be a working reality very soon, but not close to home.

Indiana is one of the few states in the country, and one of only two in the Big Ten footprint, with no NIL bill working its way through the legislative process. Furthermore, there appears virtually no appetite for it locally, with state legislators largely mum on the issue and the governor’s office bouncing the issue back to the legislature.

Why? With few willing to comment, it’s hard to say. The NCAA’s close, long-term relationship with the state could be a factor.

More:9 of 11 states in B1G working on laws to pay student-athletes. Here's why Indiana isn't.

State schools are gearing up for it anyway. IU and Purdue have built extensive frameworks within which their athletes can maximize brand potential. Notre Dame Athletic Director Jack Swarbrick has publicly backed the idea athletes should be treated just like any other student regarding their ability to profit from their likeness.

But there appears little enthusiasm or support for legislation to allow that practice in Indiana right now. Thus, state schools would be at an apparent disadvantage next to their peers in states with NIL laws in effect, especially as it pertained to the ability to recruit athletes (and in theory, coaches and support staff).

Potential solutions

This is where it all gets complicated (as if it wasn’t already).

State laws theoretically supersede NCAA rules. For its part, the NCAA has pushed hard for Congress to come up with a blanket federal law that would supersede those, effectively taking the issue out of the association’s hands. A group of conference’s calling itself “the Autonomy Five” — the ACC, SEC, Big Ten, Big 12 and Pac-12, more commonly referred to as the Power Five — released a statement earlier this month also pushing for Congressional action.

This is not a new position. In an October 2019 Q&A with IndyStar reporter Dana Hunsinger Benbow, NCAA President Mark Emmert spoke directly to state vs. national conflicts in NIL reforms.

“We simply can’t have a national athletic association in charge of national tournaments and national championships if each state creates its own … law," Emmert told IndyStar in that interview. "You simply can’t do that. It doesn't make sense. It can't be done."

But Congressional momentum toward a national law has stalled over reported partisan disagreements on the scope of a potential NIL law. Some lawmakers have also expressed concern that Congress should not be dictating policy to the NCAA.

In any event, there does not appear to be a national solution coming in time to preempt state laws and keep college athletics on a presumably level playing field starting July 1.

Can the NCAA do something about this?

Of course. And it might.

The NCAA’s Division I Council has multiple meetings scheduled in the coming days where it is expected to take up potential NIL reforms at the association level. The Council was actually expected to consider potential reforms earlier this year, before the Justice Department’s antitrust concerns prompted them to delay the discussion.

With more and more states adopting NIL legislation and the issue reaching a boiling point, the Council may well feel it can’t wait any longer.

The Big Ten has two representatives on the Division I Council: Iowa Athletic Director Gary Barta, and Kurt Zorn, an associate vice provost at IU and the university’s longtime faculty athletics representative.

“Something needs to be done,” said Darren Heitner, founder of Heitner Legal and an expert in sports business and law.

There exists noticeable opposition to the NCAA’s current proposed reforms, however, centered primarily around concerns they are still much more restrictive than states’ laws. Per reporting from ESPN, over the weekend, some conference leaders — including the commissioners of the ACC, SEC and Pac-12 — encouraged the Council to instead adopt much more relaxed procedures, which would essentially leave NIL decisions up to individual schools not currently working under states’ laws.

That would prompt a remarkable power shift on the issue to the ground level of college athletics, but it could also potentially be the least-messy of all available options. Schools would be free to embrace name, image and likeness as much or as little as they wanted, and deal with whatever consequences emerged.

“I don’t think you’re going to have chaos by leaving it up to the individual schools,” said Heitner, who helped craft NIL legislation in Florida that goes into effect July 1. “In fact, I think you’re creating as much of a free market as possible.”

How does the Alston decision affect all this?

The Supreme Court threw a curveball into the wider discussion Monday morning, when it handed down a unanimous judgment against the NCAA in the Alston case.

In effect, the decision said the NCAA could not limit education-related benefits to athletes, such as paid post-graduate internships. Indeed, Emmert appeared to cast it as a relative win for the NCAA in a statement released Monday, saying in a statement, “While today’s decision preserves the lower court ruling, it also reaffirms the NCAA’s authority to adopt reasonable rules and repeatedly notes that the NCAA remains free to articulate what are and are not truly educational benefits.”

But in a concurring opinion, Associate Justice Brett Kavanaugh spared pleasantries in a pointed rebuke of the NCAA. Kavanaugh wrote the association “is not above the law,” and “the NCAA’s business model would be flatly illegal in almost any other industry in America.”

“Everyone agrees,” Kavanaugh wrote, “that the NCAA can require student athletes to be enrolled students in good standing. But the NCAA’s business model of using unpaid student athletes to generate billions of collars in revenue for the colleges raises serious questions under the antitrust laws.

“In particular, it is highly questionable whether the NCAA and its member institutions can justify not paying student athletes a fair share of the revenues on the circular theory that the defining characteristic of college sports is that the colleges do not pay student athletes. And if that asserted justification is unavailable, it is not clear how the NCAA can legally defend its remaining compensation rules.”

Where does this go from here?

The Alston decision probably won’t demand direct effects on NIL developments expected in the coming days, but it will certainly contribute to shifting attitudes around athlete compensation.

Kavanaugh's concurring opinion would seem to leave the door open to future legal challenges of existing amateurism structures, and the sense that the association might not enjoy solid ground in the eyes of the courts could push more college leaders toward the school-by-school model proposed by those commissioners.

It “opened the door and said, ‘We have an opinion here that is limited to education-related benefits, but this is just the start,’” Heitner said. “(Kavanaugh's opinion) goes as far as to say, not only could there be legislation on this issue, but the potential for college athletes to collectively bargained, which implies that they could be unionized.”

Short term, it appears more likely than not we will see some sort of NIL reform. How liberal or restrictive that reform is — at least at the NCAA level — remains to be determined.

If/when it comes into effect, many in-state schools are prepared to act swiftly to join that marketplace, and ensure they remain as competitive with their peers as possible.

More broadly, it all bundles together in a wider discussion of athlete compensation and welfare that appears to be reaching critical mass and, in all likelihood, will change the nature of college athletics as we know it.

Follow IndyStar reporter Zach Osterman on Twitter: @ZachOsterman.