Name, Image, and Likeness (“NIL”) within the realm of collegiate sports continues to be a hot topic. I wrote my first blog post discussing this subject on October 16, 2023. (Click here to read). Since then, several events have occurred sparking a need for another update. For example, EA Sports, a video game developer, brought back its popular college football video game. The company discontinued it in 2013 due to challenges by former players against the company’s use of the players’ likeness.[1] Now, in this new NIL era, EA Sports is reviving the once popular game. Previously, I warned that student-athletes and their parents should stay vigilant by remaining up to date on the applicable laws and policies surrounding NIL. If you have not heeded that advice, then you may have missed some notable updates.
The Legal Updates
- Virginia’s Lawsuit Against the NCAA
In January of this year, Virginia’s Attorney General and Tennessee’s Attorney General filed a lawsuit against the NCAA, challenging their restrictions on certain NIL policies.[2] Specifically, they contend that the NCAA’s policy that prevents prospective and transfer student athletes from engaging in certain NIL interactions before enrollment violates federal antitrust laws. The parties requested, and the court granted, a preliminary injunction. Therefore, in the meantime, schools and NIL collectives can discuss various opportunities with prospective students.
- Virginia Amends its NIL Law
Virginia’s General Assembly was rather busy this past legislative session. Out of over 1,000 legislative bills considered, roughly half were approved. One of those bills involved an amendment to Va. Code § 23.1-408.1, Virginia’s NIL statute, which became effective July 1, 2024. The statute states, in relevant part:
"C. No athletic association, athletic conference, or other organization with authority over intercollegiate athletics shall:
- Prohibit or prevent an institution from becoming a member of the association, conference, or organization or participating in intercollegiate athletics sponsored by such association, conference, or organization as a consequence of any student-athlete earning compensation for the use of his name, image, or likeness or obtaining representation by an athlete agent or attorney in connection with issues related to name, image, or likeness;
- Entertain a complaint, open an investigation, or take any other adverse action against an institution, its supporting foundations, or an entity acting on its behalf, for activity permitted under this section;
- Penalize an institution or a student-athlete or prevent an institution or a student-athlete from participating in intercollegiate athletics because an individual or entity whose purpose includes supporting or benefiting the institution or student-athletes violates its rules or regulations concerning name, image, or likeness;
- Prevent an institution from compensating a student-athlete for the use of his name, image, or likeness; or
- Prevent an institution, its supporting foundations, or an entity acting on its behalf from identifying, creating, negotiating, facilitating, supporting, engaging with, assisting with, or otherwise enabling a name, image, or likeness opportunity for a student-athlete.
D. Each institution shall develop and submit to the institution’s governing board or similar governing body for approval institutional policies or procedures that govern the compensation of a student-athlete for the use of his name, image, or likeness. Such institutional policies or procedures shall not inhibit a student-athlete from participating in activities that are not related to intercollegiate athletics, as long as participation in such activities has no impact on the student-athlete’s eligibility for intercollegiate athletics. Each institution may enforce such approved policies or procedures and the provisions of this section. No student fees shall be used to compensate student-athletes for the use of their name, image, or likeness.
E. An institution may provide assets, resources, or benefits as an incentive to individuals, companies, or other entities to provide money, benefits, opportunities, or services to an outside entity that supports name, image, or likeness opportunities for the institution’s student-athletes."
Va. Code § 23.1-408.1. This update is significant. Colleges and universities in Virginia can now directly compensate their student-athletes through NIL deals. It also prohibits the NCAA from punishing a school for compensating athletes for the NIL rights. Although the law became effective in July, it was approved by the Governor in April. Notably, that same month, the NCAA’s DI Council approved a proposal that loosened some of its NIL restrictions but highlighted that “the existing prohibitions against pay-for-play and schools compensating student-athletes for use of their NIL remain in place.”[3]
Considerations for the Virginia Collegiate Student-Athlete
Virginia is leading the charge when it comes to enhancing the rights of student-athletes benefiting from their NIL. These rights are valuable. Due to this growing and developing legal landscape, it may prove beneficial for student-athletes to seek an attorney to assist with understanding their legal rights behind proposed NIL deals; negotiating and drafting NIL agreements, and other aspects involving NIL.
Diamond Royster is a Pender & Coward attorney focusing her practice on civil litigation, local government, eminent domain/right of way and waterfront law matters.
[1] EA Sports' College Football 25 video game arrives after a decade to NIL rules and an enthused fan base (nbcnews.com)
[2] January 31, 2024 - Attorney General Miyares Sues NCAA Over NIL Restrictions (state.va.us)
[3] DI Council approves NIL reforms, permits school assistance with NIL activity - NCAA.org