The Brisk Evolution of Name, Image and Likeness (NIL) Rights

sports-NIL-1188462138-300x200Developments in the world of name, image and likeness (NIL) rights continue to occur at an extremely swift pace.

Within the last two weeks, Virginia amended its existing NIL laws to significantly strengthen student-athlete NIL rights, and the NCAA adopted new NIL rules designed to allow schools to support student-athlete NIL endeavors. The NCAA also relaxed the NIL disclosure requirement adopted in January and announced it had selected Teamworks Innovations to build and maintain its NIL database.

NCAA Rule Adoption and Amendment
On April 22, 2024, the NCAA Division I Board of Directors ratified NIL rule changes which the NCAA framed as “allow[ing] schools to provide assistance in supporting [NIL] activities[.]Effective immediately, schools are permitted to assist student-athletes in identifying and entering into NIL agreements with third parties. The student-athletes, however, must control the terms of the agreements. Existing prohibitions on pay-for-play and direct payments from schools to players remain in force.

The NCAA also amended the NIL rules it adopted in January 2024. Newly created Bylaw 22.2.1 obligated student-athletes to report to their schools within 30 days about any NIL agreement worth $600 or more. The amendment appears to have eliminated the requirement for student-athletes to disclose such agreements and instead encourages disclosure by offering increased NIL-related support from their schools. Beginning August 1, 2024, schools will only be “permitted to increase NIL-related support” for “student-athletes who disclose their NIL agreements.” (Pillsbury examined the impact of the NCAA’s adoption of NIL legislation in January here.)

The NCAA also announced on April 25, 2024, that it had selected software company Teamworks Innovations to develop and run the NCAA’s repository of voluntary NIL disclosure data. This data will be made accessible to NCAA Division I member institutions and student-athletes. The idea of developing an NIL data repository is several years old. However, the selection of Teamworks dovetails with the NCAA’s recent adoption and now amending of NIL legislation containing data disclosure provisions.

Virginia Amends, Strengthens Existing NIL Legislation
Separately, in the area of state legal developments, Virginia governor Glenn Youngkin signed into law amendments to the state’s existing NIL legislation. These changes go further than any other existing law in protecting the rights of student-athletes to earn NIL compensation. Beginning on July 1, 2024, Virginia law will:

  1. Allow schools to directly enter into NIL agreements with student-athletes;
  2. Allow schools to provide “assets, resources, or benefits” as “an incentive” to third parties that “support” NIL opportunities for the school’s student-athletes;
  3. Prohibit the NCAA, schools and conferences from investigating and punishing schools and student-athletes for engaging in defined NIL activities;
  4. Prohibit schools, the NCAA or athletic conferences from (i) barring a student-athlete from earning NIL compensation or (ii) engaging an agent for such activities; and
  5. Continue to preclude the creation of employment status based on NIL activities.

Thirty-six states (and the District of Columbia) have passed some form of NIL legislation. Virginia’s amendment to existing legislation goes further than any other jurisdiction in terms of protecting the NIL rights of student-athletes and restricting the ability of voluntary organizations to prohibit or curtail those rights.

UVA Director of Athletics Carla Williams praised the amended law as “provid[ing] much needed and practical flexibility,” but noted that UVA had not “made any decisions about which provisions within the law [UVA will] actually activate” and that the school will “continue to support Cav Futures,” the school’s official NIL collective. Her counterpart at Christopher Newport University, Kyle McMullin, similarly noted that the “law will give us new flexibility in the future to support our students[.]” And Wood Selig, the Director of Athletics at Old Dominion University, stated that ODU will “continue to do business as we have for the last year or so,” working with the school’s two collectives.

House Bill 1505, which amends § 23-408.1 of the Code of Virginia, can be viewed here.