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  1. #1

    Name Image Likeness

    Luke Decock at the Raleigh News & Observer has written a good column on the current state of the battle for Name, Image and Likeness (NIL) rights for NCAA athletes especially as it applies to schools in the state of North Carolina.

    What's happening now is that state legislatures are rushing to adopt state laws allowing NIL rights for NCAA athletes but NOT the NC General Assembly. These state laws are not uniform. There's no sign of impending federal legislation. The NCAA itself seems paralyzed by a somewhat related case pending at the Supreme Court but the state laws may make it impossible for the NCAA to act even after the Supreme Court opinion comes down this summer.

    I have sympathy for the athletes but I have a lot of concerns about the lack of uniformity in these state laws. I fear a competition among states to allow as much as possible to help their state universities recruit. I also fear that NIL will allow boosters to pay athletes. I certainly fear that Duke will be left behind unless the NC General Assembly adopts NIL legislation. Given the extremely high visibility of Duke basketball, our basketball players should be able to do very, very well if they're allowed to collect NIL money but I feel uneasy about recruiting being based in large part on NIL money. A few bad years after Coach K retires and Duke basketball could go into a death spiral as NIL money dries up. Large state schools have big alumni bases to sustain them. Duke doesn't.

    Anyway, NIL is coming down the pike very rapidly even if it makes me uneasy.

  2. #2
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    The NCAA simply cannot allow different standards across different states. It schools in Florida and California (two of the leading states in terms of NIL rights) could allow athletes to make hundreds of thousands of dollars while schools in other states were prevented from giving anything, basketball players would be picking Pepperdine and Stetson over Duke and Kentucky.

    While I know the NCAA is inept at... well... just about everything, I just don't see them allowing this kind of imbalance to occur. It may be that some kind of new rules are cobbled together at the last minute, but I just can't see something as significant as paying the players hundreds of thousands of dollars not being dealt with in a national way.
    Why are you wasting time here when you could be wasting it by listening to the latest episode of the DBR Podcast?

  3. #3
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    Maybe NCAA should limit NIL rights to sophomores, juniors, and seniors to reduce the effect on recruiting.

  4. #4
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    Quote Originally Posted by Bay Area Duke Fan View Post
    Maybe NCAA should limit NIL rights to sophomores, juniors, and seniors to reduce the effect on recruiting.
    You can't do that. These decisions are being made by legislatures at this point, not the NCAA, and their only interest is in letting the athletes have more rights (ie: access to money).
    Why are you wasting time here when you could be wasting it by listening to the latest episode of the DBR Podcast?

  5. #5
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    Quote Originally Posted by JasonEvans View Post
    The NCAA simply cannot allow different standards across different states. It schools in Florida and California (two of the leading states in terms of NIL rights) could allow athletes to make hundreds of thousands of dollars while schools in other states were prevented from giving anything, basketball players would be picking Pepperdine and Stetson over Duke and Kentucky.

    While I know the NCAA is inept at... well... just about everything, I just don't see them allowing this kind of imbalance to occur. It may be that some kind of new rules are cobbled together at the last minute, but I just can't see something as significant as paying the players hundreds of thousands of dollars not being dealt with in a national way.
    Like other industries that try to self regulate if they do a poor job the state and federal governments will step in. The ncaa can try anything they want right now but any regulations they set now are superseded by laws. I think the ship has sailed on the ncaa

  6. #6
    Quote Originally Posted by hallcity View Post
    I also fear that NIL will allow boosters to pay athletes.
    This is not something to fear. Athletes deserve to make as much money as they can, just like anyone else. Allowing fans to pay them helps avoid legal issues like Title IX. It also prevents schools from claiming they can't afford to pay them because they don't have to be the ones doing the paying.

  7. #7
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    Quote Originally Posted by hallcity View Post
    Luke Decock at the Raleigh News & Observer has written a good column on the current state of the battle for Name, Image and Likeness (NIL) rights for NCAA athletes especially as it applies to schools in the state of North Carolina.

    What's happening now is that state legislatures are rushing to adopt state laws allowing NIL rights for NCAA athletes but NOT the NC General Assembly. These state laws are not uniform. There's no sign of impending federal legislation. The NCAA itself seems paralyzed by a somewhat related case pending at the Supreme Court but the state laws may make it impossible for the NCAA to act even after the Supreme Court opinion comes down this summer.

    I have sympathy for the athletes but I have a lot of concerns about the lack of uniformity in these state laws. I fear a competition among states to allow as much as possible to help their state universities recruit. I also fear that NIL will allow boosters to pay athletes. I certainly fear that Duke will be left behind unless the NC General Assembly adopts NIL legislation. Given the extremely high visibility of Duke basketball, our basketball players should be able to do very, very well if they're allowed to collect NIL money but I feel uneasy about recruiting being based in large part on NIL money. A few bad years after Coach K retires and Duke basketball could go into a death spiral as NIL money dries up. Large state schools have big alumni bases to sustain them. Duke doesn't.

    Anyway, NIL is coming down the pike very rapidly even if it makes me uneasy.
    I’m not a lawyer, but why does it require legislation for a student to enter into a contract with a third party (recognizing that if the student wants to use the schools imagery they will need to negotiate a deal there as well)? I was under the impression that it was the NCAA enforcing the “amateurism” rule and not state legislation, and that states were pushing NIL laws to make the NCAA move off their position. Maybe someone much more knowledgeable than me can let me know what I’ve missed.

  8. #8
    Quote Originally Posted by mkirsh View Post
    I’m not a lawyer, but why does it require legislation for a student to enter into a contract with a third party (recognizing that if the student wants to use the schools imagery they will need to negotiate a deal there as well)? I was under the impression that it was the NCAA enforcing the “amateurism” rule and not state legislation, and that states were pushing NIL laws to make the NCAA move off their position. Maybe someone much more knowledgeable than me can let me know what I’ve missed.
    The legislation will make it impossible to enforce NCAA amateurism rules insofar as NIL is concerned in states having the legislation. The NCAA could try to prevent schools in states with such legislation from participating in competition with NCAA schools in other states but that would destroy the NCAA, so they've already said they won't do that. What the NCAA may try to do is to bring lawsuits to invalidate the state laws on the grounds that they interfere too much with interstate commerce. They may win on these lawsuits. Of course, the NCAA also faces antitrust litigation over NIL and that litigation may succeed or maybe the NCAA won't be able to succeed in interstate commerce lawsuits because of antitrust concerns. Basically, either the NCAA gets federal NIL legislation or there's going to be a lot of money spent on lawyers with the ultimate outcome being up to the Supreme Court. I would not bet on the NCAA ultimately winning.

  9. #9
    Quote Originally Posted by vfefrenzy View Post
    This is not something to fear. Athletes deserve to make as much money as they can, just like anyone else. Allowing fans to pay them helps avoid legal issues like Title IX. It also prevents schools from claiming they can't afford to pay them because they don't have to be the ones doing the paying.
    Agreed. From a legal and equity perspective it doesn't make sense to not allow someone like Zion Williamson to not be paid while playing in the NCAA. We'll so how it effects the game I guess but I am optimistic.

  10. #10
    So it may be years and an ultimate SCOTUS Verdict before NIL actually happens?

    I wonder if these NIL contracts can limit player transfers? So if Wildcat Bob’s used cars in Lexington, KY contracts to use the players NIL to sell used Mercurys and Subarus, couldn’t the contract require the player to play only for UK over the term of the contract?

  11. #11
    Quote Originally Posted by lotusland View Post
    So it may be years and an ultimate SCOTUS Verdict before NIL actually happens?

    I wonder if these NIL contracts can limit player transfers? So if Wildcat Bob’s used cars in Lexington, KY contracts to use the players NIL to sell used Mercurys and Subarus, couldn’t the contract require the player to play only for UK over the term of the contract?
    Maybe not years. The NCAA will try to get a preliminary injunction to block the state laws. A court has to rule on a preliminary injunction pretty quickly and appeals on preliminary injunctions progress quite rapidly -- like days and weeks, not months and years. A preliminary injunction wouldn't be the end of the litigation but it would be a strong sign of where things would be finally heading.

    The kind of contract you're talking about might or might not pass muster under the state laws and the answer might depend upon the state. The NCAA might have zero control over it even though it would directly affect NCAA competition. That's kinda the problem with 50 states going in 50 different ways.

  12. #12
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    Quote Originally Posted by hallcity View Post
    Maybe not years. The NCAA will try to get a preliminary injunction to block the state laws. A court has to rule on a preliminary injunction pretty quickly and appeals on preliminary injunctions progress quite rapidly -- like days and weeks, not months and years. A preliminary injunction wouldn't be the end of the litigation but it would be a strong sign of where things would be finally heading.

    The kind of contract you're talking about might or might not pass muster under the state laws and the answer might depend upon the state. The NCAA might have zero control over it even though it would directly affect NCAA competition. That's kinda the problem with 50 states going in 50 different ways.
    We shall see, but I imagine the SCOTUS verdict will be definitive one way or another. Either the NCAA can set rules as it sees fit, voiding state laws to the contrary, or the NCAA cannot set rules so, in which case NIL will be legal everywhere. I have trouble imagining a situation where the verdict allows individual states to regulate the groups like the NCAA as they see fit.
    1200. DDMF.

  13. #13
    Quote Originally Posted by thedukeman View Post
    Agreed. From a legal and equity perspective it doesn't make sense to not allow someone like Zion Williamson to not be paid while playing in the NCAA. We'll so how it effects the game I guess but I am optimistic.
    Should Zion be able to get paid in High School? You’re saying there should be no such thing as amateur sports? When Zion turned 18 he had all the worldwide pro sports leagues available to him according to their rules. The NBA won’t allow him to play at all. NCAA will allow him to play but not be paid because they are an amateur league. Why isn’t it the NBA who’s rules are being questioned? Zion was an adult with unique basketball skills and the NBA teams would have loved to be able to draft him and pay him big bucks except for a league rule established to force him to play amateur ball for a year so teams could evaluate his ability at no cost. I’m astounded that it is the NCAA’s and not the NBA’s rule that is being questioned.

  14. #14
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    Quote Originally Posted by uh_no View Post
    We shall see, but I imagine the SCOTUS verdict will be definitive one way or another. Either the NCAA can set rules as it sees fit, voiding state laws to the contrary, or the NCAA cannot set rules so, in which case NIL will be legal everywhere. I have trouble imagining a situation where the verdict allows individual states to regulate the groups like the NCAA as they see fit.
    Not so sure. On its face, the Supreme Court case is fairly limited in scope. Can the NCAA place restrictions on education-related payments? It has nothing to do with other NCAA restrictions on non-education related payments, such as NIL. The Supreme Court tends to rule narrowly on the specific issue presented. But during the argument, the Justices were fairly hostile to the NCAA, and questioned the NCAA's entire amateurism rationale. So who knows what will actually happen, but I would be somewhat surprised if the SCOTUS decision definitively prohibited all NCAA restrictions on payments to athletes.

  15. #15
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    Quote Originally Posted by DCDevil9194 View Post
    Not so sure. On its face, the Supreme Court case is fairly limited in scope. Can the NCAA place restrictions on education-related payments? It has nothing to do with other NCAA restrictions on non-education related payments, such as NIL. The Supreme Court tends to rule narrowly on the specific issue presented. But during the argument, the Justices were fairly hostile to the NCAA, and questioned the NCAA's entire amateurism rationale. So who knows what will actually happen, but I would be somewhat surprised if the SCOTUS decision definitively prohibited all NCAA restrictions on payments to athletes.
    while there is some correlation between oral arguments and ultimate ruling, it's never a slam dunk. google v oracle (for which Duke's CS director of undergraduate studies was the expert witness for google...hot shot...) recently, the court came down hard on google during oral (where IMO the lawyer didn't do a particularly good job), but ruled very much in favor of google.

    Either way, I find it difficult to reconcile how a private group is allowed to restrict what their members cannot do in one domain but not another. IMO a private group can either set whatever rules it wants, or it cannot...I don't expect the court to carve out an entire set of corner cases where "if you do this and this, then you can set these rules, but not these, but if you do this, you set these rules" It opens up too many cans of worms that they'll have to hear about for the next decade.
    1200. DDMF.

  16. #16
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    Quote Originally Posted by uh_no View Post
    while there is some correlation between oral arguments and ultimate ruling, it's never a slam dunk. google v oracle (for which Duke's CS director of undergraduate studies was the expert witness for google...hot shot...) recently, the court came down hard on google during oral (where IMO the lawyer didn't do a particularly good job), but ruled very much in favor of google.

    Either way, I find it difficult to reconcile how a private group is allowed to restrict what their members cannot do in one domain but not another. IMO a private group can either set whatever rules it wants, or it cannot...I don't expect the court to carve out an entire set of corner cases where "if you do this and this, then you can set these rules, but not these, but if you do this, you set these rules" It opens up too many cans of worms that they'll have to hear about for the next decade.
    But the plaintiffs didn't challenge non-education related restrictions. The record below is clear that plaintiffs were not challenging whether the NCAA could restrict unlimited payments to student athletes, akin to professional sports. Instead, they only challenged restrictions on the margins, such as whether the NCAA can restrict athletes from getting post-graduate scholarships. That is why I suspect this case will not be as meaningful as many expect.

  17. #17
    Quote Originally Posted by lotusland View Post
    Should Zion be able to get paid in High School? You’re saying there should be no such thing as amateur sports? When Zion turned 18 he had all the worldwide pro sports leagues available to him according to their rules. The NBA won’t allow him to play at all. NCAA will allow him to play but not be paid because they are an amateur league. Why isn’t it the NBA who’s rules are being questioned? Zion was an adult with unique basketball skills and the NBA teams would have loved to be able to draft him and pay him big bucks except for a league rule established to force him to play amateur ball for a year so teams could evaluate his ability at no cost. I’m astounded that it is the NCAA’s and not the NBA’s rule that is being questioned.
    Idk if Zion should get paid in High School thats not what I was discussing. And no, I am not saying there should be no such thing as amateur sports generally idk why you are imputing that to me. If you read my post I was only talking about the NCAA. If you are astounded why it is the NCAA's rule and not the NBA's then you don't seem to understand what is at issue. It is antitrust law and the NCAA being in potential violation of the Sherman Act. Arguably, the NCAA sets labor costs unreasonably low (by not paying players) which allows it to use exclusionary tactics to maintain its monopoly over the college athletics market. If another competitor entered the market, they could not force college athletes to play for free (overtime paying athletes 100k). Essentially, a competitor enters the market, with higher costs because it is paying its workers, so the NCAA marginally lowers its price below the new competitors (it can remain profitable because it pays players nothing) until the competitor is driven out of business. At which point the NCAA will return its price to normal. That is the theory anyway not saying I agree with it. This is entirely different than the NBA requiring a certain requisite of players. This is not amateurism generally although if the supreme court rules against the NCAA i could see high schools being involved eventually.

    Edit: I'm sorry to everyone who keeps seeing me talk about this stuff in threads. I don't mean to be argumentative or die on this hill. This will be my last response about this i promise I don't care all that much.

  18. #18
    It seems you are torturing the Sherman Act.

  19. #19
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    Quote Originally Posted by thedukeman View Post
    Idk if Zion should get paid in High School thats not what I was discussing. And no, I am not saying there should be no such thing as amateur sports generally idk why you are imputing that to me. If you read my post I was only talking about the NCAA. If you are astounded why it is the NCAA's rule and not the NBA's then you don't seem to understand what is at issue. It is antitrust law and the NCAA being in potential violation of the Sherman Act. Arguably, the NCAA sets labor costs unreasonably low (by not paying players) which allows it to use exclusionary tactics to maintain its monopoly over the college athletics market. If another competitor entered the market, they could not force college athletes to play for free (overtime paying athletes 100k). Essentially, a competitor enters the market, with higher costs because it is paying its workers, so the NCAA marginally lowers its price below the new competitors (it can remain profitable because it pays players nothing) until the competitor is driven out of business. At which point the NCAA will return its price to normal. That is the theory anyway not saying I agree with it. This is entirely different than the NBA requiring a certain requisite of players. This is not amateurism generally although if the supreme court rules against the NCAA i could see high schools being involved eventually.

    Edit: I'm sorry to everyone who keeps seeing me talk about this stuff in threads. I don't mean to be argumentative or die on this hill. This will be my last response about this i promise I don't care all that much.
    Sorry, that's not really the theory. The big picture antitrust issue is whether the NCAA, which is a joint venture of competing schools, can agree to set the price of labor at the cost of attendance. The NCAA asserts that its labor restrictions are justified because the product it offers--amateur sports--competes in a broader market against other forms of entertainment, such as professional sports. Years ago, the Supreme Court recognized that the NCAA was different, and that amateurism was a justification for some restrictions that allow the product (amateur sports) to be offered. Again, this big picture question is not at issue in the current SCT case, but it is only a matter of time.

  20. #20
    Quote Originally Posted by DCDevil9194 View Post
    Sorry, that's not really the theory. The big picture antitrust issue is whether the NCAA, which is a joint venture of competing schools, can agree to set the price of labor at the cost of attendance. The NCAA asserts that its labor restrictions are justified because the product it offers--amateur sports--competes in a broader market against other forms of entertainment, such as professional sports. Years ago, the Supreme Court recognized that the NCAA was different, and that amateurism was a justification for some restrictions that allow the product (amateur sports) to be offered. Again, this big picture question is not at issue in the current SCT case, but it is only a matter of time.
    I was not claiming to lay out "the theory" or the sherman act generally, or the big picture. Maybe i shouldn't have used "the theory" later in my response. Just a singular point. The issue being NCAA potentially violating anti trust and the sherman act, and one example/theory that I qualified by saying I'm not even sure i agree with. Just pointing out why this doesn't involve the nba. No need to apologize.

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