NIL laws reshape structure for NCAA student athletes

In June 2021 and Feb. 2022, the Oregon State Senate passed a pair of bills allowing student athletes to profit off their public images. Oregon became the ninth state to pass bills like these in the past three years, with California’s landmark 2019 bill serving as the model. Known as NIL laws, these bills explicitly allow students to profit from their name, image and likeness.

In practice, that means the bills give non-professional athletes the right to make money through advertising deals. Previously, most academic institutions prohibited student athletes from receiving compensation for endorsement deals and appearance fees. Now, for example, Oregon Ducks quarterback Anthony Brown can appear on a cereal box or in an energy drink commercial without facing retribution. Under the legislation, student athletes like Brown would also be able to hire sports agents to represent them. 

NIL laws are a direct challenge to the authority of the National Collegiate Athletics Administration (NCAA), which has much control over pre-professional sports in the United States. Formerly, NCAA rules stated that players could not be paid “to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind.” They were also prohibited from being represented by agents. NIL laws explicitly legalized these actions in multiple states, preventing students from being punished for appearing in ads or hiring agents. In response to the wave of NIL laws, the NCAA Division I board of directors voted in June 2021, shortly after the passage of Oregon’s first NIL bill, to waive their rules surrounding advertising and agents. 

Oregon’s 2021 NIL bill was co-sponsored by Senate President Peter Courtney (D-Salem) and President Pro Tempore James Manning Jr. (D-Eugene). Manning Jr., the highest-ranking Black politician in Oregon, framed the bill as an act of economic justice, emphasizing that college sports are a billion-dollar industry. 

“The NCAA and universities are profiting off our athletes, many of whom are Black and from low-income households, and preventing them from making any money for themselves,” Manning Jr. said to Oregon Public Broadcasting. 

Initially, Courtney intended for the law to go further, requiring schools that receive royalties for sports merchandising agreements (e.g. to advertise sponsors on athletes’ jerseys) to pay a cut of the royalties directly to the student athletes. This part of the bill was wider-ranging and more impactful than any previous state NIL laws. The provision was cut after Mark Emmert, the president of the NCAA, threatened to sue the state of Oregon, saying the provision would make the athletes employees rather than students.

Despite the setback, Oregon’s major universities hailed the 2021 NIL bill’s passage on social media, as did prominent Oregon collegiate athletes, including Ducks women’s basketball star Sabrina Ionescu. However, opposition remained to the idea of allowing student athletes to profit. Writing in the New Yorker in 2015, legal scholar Ekow Yankah argued that top college athletes are already paid in scholarships, medical care and free travel, allowing them to live very comfortable lives. He also contended that sports should be part of a well-rounded education, rather than something seen as a job separate from peoples’ studies.

NIL laws are likely to continue to grow in popularity. On Feb. 9 this year, the Oregon State Senate passed a bill expanding their previous NIL law, allowing student athletes to profit off jersey sales as well as appearances on trading cards and in video games. Oregon is the first state to expand their NIL law to include these elements. Since Oregon’s bill passed, 19 other states have passed NIL laws, largely with bipartisan approval.