Ashley J. Beth
Loyola University Chicago School of Law, JD 2022
With changes to the regulations of the National Collegiate Athletic Association (NCAA) student-athlete model looming overhead, the role of athlete representation is significant in the conversation relating to name, image, and likeness (NIL) of the student athlete. The NCAA has a long-standing “no-agent” rule that forbids student-athletes from being represented by an agent or organization in the marketing of his or her athletic ability until after the completion of their last intercollegiate contest. The NCAA determines a student-athlete’s eligibility based partly on their amateurism status, a term which is not expressly defined by the NCAA, although guided by several factors. Among those factors that would remove an athlete’s eligibility from NCAA competition, is a binding agreement to be represented by an agent at any time before or during a student-athletes collegiate career, however, there are a few exceptions to this factor.The underlying purpose of the “no-agent” rule is to protect student athletes from exploitation in the open market. To further regulate potential issues, the NCAA adopted the Uniform Athlete Agents Act, which effectively criminalizes contact between agents and athletes before the athletes completion of their last intercollegiate contest.
The NCAA began feeling the pressure to adjust their governing model because of the demands for increased support for its athletes. This pressure included the recent legislation passed in California, the California Fair Pay to Play Act. The Act was signed into law by the governor of California on September 30, 2019. The law will prevent the NCAA from punishing student-athletes from profiting off of their NIL and allow student-athletes to sign with agents. The Act will go into effect in 2023. Prompted by the result of the new legislation in October 2019 the NCAA governing body began discussions about restructuring the rules to allow student-athletes to benefit from their NIL. Since then, Florida has applied even more pressure by passing a law that will go into effect on July 1, 2021 allowing college athletes in Florida to profit off of their NIL. The Board of Governors created a working group to develop recommendations that will be voted on in January 2021. This past July, the working group presented Congress with a four-page document asking for federal NIL legislation to preempt the states from enforcing their own laws. The NCAA has called this document “The Intercollegiate Amateur Sports Act of 2020”. The proposed Act contains a provision that permits student-athletes to retain “Certified Agents” after their first semester. By November 1, 2020 the full version of the Act is expected to be complete.
Implications of retaining the “No-Agent” rule
Steadfast in their mission to protect athletes from exploitation by professional and commercial enterprises, the NCAA has stuck by its “no-agent” rule since its inception. Student athletes are students first and foremost, and it has always been the intent of the NCAA to shield them from being marketable entities. Moreover, the amateur college athletics model attracts loyal fans by being a distinct product from polished professional sports. The college athletics model emphasizes the culture of a team created through a spirited community of current students and alumni, rather than superstar individuals touting brand names. Additionally, professional athletes have expressed their concern about the proposed models. Tim Tebow has spoken publicly about his concerns with reforming the “no-agent” rule. Tebow fears that reforming the rule will result in NCAA sports that are less about teamwork and school spirit, and more about individual accomplishment. The popularity of the college athletics model as it stands had brought in over $1 billion in revenue in 2018.
Implications of abolishing the “No-Agent” rule
In the same effort to protect student-athletes from being exploited in the open market, consulting with seasoned professionals who can provide athletes with career talent-management resources may be in the best interest of the athlete. Most student-athletes and their families do not have the level of knowledge to negotiate favorable contracts that agents do. The student-athletes will be ill-prepared to navigate the complicated legal documents that will bind their NIL rights. An agent thus can handle the legal work and marketing, while the student-athlete can remain focused on their education and sport. Additionally, current proposals limit the agent’s services to solely marketing an athlete, with a few exceptions for services pertaining to draft-eligible players. This safeguard prohibits agents from seeking professional sports opportunities for their clients, which could blur the line of amateurism. The NCAA can retain control of the agent agreements by limiting their services and fees. Transparency will remain a high priority. Besides the strict certification process currently in place for agents, the proposed Intercollegiate Amateur Sports Act of 2020 establishes a “Certification Office” within the Federal Trade Commission to regulate the agents.
While the NCAA is considering how to properly open the doors for student-athletes to profit off of their name, image, and likeness, the working group created by the Board of Governors will have to cautiously consider the role of agents. It is imperative that the NCAA avoids undermining the distinction between college and professional athletes, yet provide athletes with adequate tools to capitalize on their marketability. The NCAA expects to share a complete version of the NIL legislation by November 1st with the policy being voted on by January 31, 2021.