Jon Israel Weighs in on NCAA’s NIL Rules and Where They are Headed

Foley & Lardner LLP Partner Jon Israel is featured in The Wall Street Journal article, “How Are the New NCAA Rules on Paying College Athletes Working Out?,” which discusses different perspectives on the status of the NCAA’s name, image, and likeness (NIL) rules, including who is benefiting the most and whether the new rules are increasing the inequities in college sports.

Under the NCAA rules that have been in effect for 10 months, college athletes can profit from their name, image, and likeness. The NCAA changed its policy after a number of states had passed laws allowing NIL payments to college athletes, but didn’t enact a detailed set of rules to govern them.

In the article, Israel and two other authorities in the space discuss how the NIL rules have played out so far and where regulation might be headed. When asked about the biggest surprises since the advent of NIL, Israel commented, “What has surprised me is the complete regulatory void in which the NIL landscape is taking shape. So far, there don’t appear to be any meaningful guardrails regulating activity.”

About which schools are benefiting the most from NIL, he said, “The schools that are benefiting are those that are actively helping athletes navigate the NIL space, including, for example, providing business- and law-school mentors or securing apps and tech platforms that serve as learning centers, networking sites and NIL marketplaces to connect athletes and prospective sponsors.”

When asked if NIL intensifies the inequities in college sports, Israel stated that, “Inequities already exist in college sports, and I don’t believe that the commercialization of college-athlete NIL rights unmasks or unduly exacerbates them per se… the value of any athlete’s NIL rights is not necessarily measured by the sport they play. NIL opportunities will be driven and secured by other factors, including personality, drive, business acumen, and social-media savvy.”

In terms of NIL potentially changing the competitive landscape of college sports, he said that “It feels that way at the moment, mostly because in this early phase, NIL activity around some schools has launched more quickly than at other schools. With time, all schools will have their NIL programs up and running, and the regulatory environment will hopefully become more settled.”

Israel also commented that “Collectives [in which companies or individuals pool their resources and direct that money to college players for their endorsements] are not inherently worrying.” In discussing the future of NIL and the likelihood of college athletes being compensated directly for playing, Israel said, “I think the advent of NIL may take some steam out of the movement to establish student-athletes as employees who must be paid for their services.” He continued, “NIL money may ultimately be viewed as more than enough to meet the needs and rights of college athletes.”

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