The Compliance Column: Student-Athletes Could Soon Profit off Their Name, Image and Likeness

By Noël Couch

The 2021 gymnastics season is upon us, and while the big skills, flashy leotards and 10.0s are already making headlines, there is another hot topic gaining the attention of college gymnastics fans—name, image and likeness.

If you were watching Friday Night Heights last weekend, you likely saw LSU’s Haleigh Bryant score a 9.975 in her debut on floor. Bryant has made it known that it is a pre-meet ritual of hers to eat fruit snacks before competitions, in particular, Welch’s Fruit Snacks. She told commentator Alicia Sacramone that she has eaten a pack of those fruit snacks before every meet since she was level 7. Co-commentator John Roethlisberger candidly asked if she could get a sponsorship. “Can they do that?” Sounds like a lucrative business deal. Sacramone responded, “No, not in college.” Perhaps the more accurate response would have been, “Not yet!”

Currently, under NCAA rules a DI student-athlete may not profit off of his or her name, image and likeness. Additionally, he or she may not promote or endorse a commercial product or service. What does that mean in practical terms? A few examples provide some context. A gymnast cannot team up with a local boutique store, promote its newest line of accessories and be paid for doing so. A football player cannot accept payment for his autograph—no exceptions. A swimmer cannot post to Twitter endorsing Speedo because of its comfort, even if she is not receiving payment for doing so.

The NCAA DI Council may soon vote to change all of that. The new name, image and likeness legislation may make a sponsorship, like the one mentioned on Friday between Welch’s and a collegiate gymnast, a permissible opportunity. College gymnasts, along with their fellow student-athletes, may be permitted to engage in business activities, as well as in promotions or endorsements of products and services. Importantly, they would be permitted to receive compensation for doing so. 

To be clear, the proposed legislation as written is not pay for play, meaning the student-athletes will not be paid for participating in their respective sports. Rather, they would be given the opportunity to take part in business activities, promotions and endorsements and to receive compensation for doing so without violating NCAA rules. The new legislation would apply uniformly to all student-athletes. That is, the opportunity to, for example, secure an endorsement deal will be available to all student-athletes. However, it is likely that particular student-athletes may be presented with opportunities for greater compensation than their teammates and peers in other sports. Katelyn Ohashi is a good example of a gymnast who may have benefited had these rules been in place when she was a student-athlete at UCLA.

If approved, the new rules are scheduled to take effect on Aug. 1, 2021. The rules that currently restrict both student-athletes and prospective student-athletes from profiting off of their names, images and likenesses would be lifted later this year, generating a range of entrepreneurial opportunities. Nevertheless, there are restraints and checks drafted into the rules with which the student-athletes and prospects must comply to preserve their amateurism and eligibility with the NCAA. For example, that football player mentioned earlier will be permitted to receive compensation for his autograph, with the caveat that he cannot do so while participating in required activities or otherwise representing his school, and no school marks may be used in conjunction with the sale of his autograph.

This is a big deal. So big that congressmen, senators and governors have been vocal about the topic and have passed their own legislation regarding name, image and likeness. The legislation change is expected to have such striking impacts that the Department of Justice urged the NCAA to postpone its vote on the new rules just days before the DI Council was scheduled to make its decision. The vote was originally scheduled to take place on Monday, Jan. 11.

The legislation is complicated and lengthy, but the opportunities it creates are exciting for student-athletes, including the college gymnasts we follow and support. There are several months before the new rules would go into effect, and there will be much more discussion and clarification from the highest level of NCAA governance until then, especially following the delayed vote. To keep you informed about this hot topic, I will start by sharing the basics in a Q&A, then continue to provide updates and shed light on the topic as a new voting date is scheduled. Feel free to send in your own questions to be included in the next column.

Q: What is a name, image and likeness activity?

A: A name, image and likeness activity is an activity in which a student-athlete or prospective student-athlete’s name, image, likeness or personal appearance is used for promotional purposes by a non-institutional entity, such as the student-athlete or a commercial entity. Such use may be compensated or uncompensated.

Q: What sort of compensation can a student-athlete receive for name, image and likeness activities?

A: Compensation can include cash, product or other benefit.

Q: Are any activities expressly prohibited?

A: Yes. The legislation prohibits a student-athlete from engaging in activities involving a commercial product or service that conflicts with NCAA legislation, such as sports wagering and banned substances. It also prohibits a student-athlete from receiving compensation for athletics performance or for participation as an inducement to enroll in an institution. There are several other prohibitions included in the legislation.

Q: Who is monitoring the activities?

A: A third-party administrator, as determined by the NCAA, will monitor the activities. A student-athlete will be required to disclose information related to transactions, compensation arrangements and details of relationships.

Q: Can student-athletes hire a professional to assist in their activities?

A: Yes. A student-athlete may hire a professional to assist with advice, representation in contract negotiations and marketing.

Q: Why does the government care about this topic?

A: Federal legislators are involved in the name, image and likeness legislation because it involves federal antitrust laws. In simple terms, these antitrust laws are intended regulate business activities (which student-athletes may soon be permitted to participate) to promote fair competition for the benefit of consumers. 

Q: Why do college gymnastics fans care about this topic?

A: A college gymnast, for example, may become the face of fans’ favorite brands. College gymnasts across the country may endorse their preferred products on social media. We may even see gymnasts go public with their personal entrepreneurial initiatives.

This article provides a general overview of the new name, image and likeness legislation for college gymnastics fans. Information should not be relied upon for engaging in name, image and likeness activities. Specific rules involving regulations and prohibited activities are not included for purposes of clarity and comprehension. Amendments to the legislation may have occurred since this article was published. 

Noël Couch is the director of compliance for Sacred Heart University athletics in Fairfield, Connecticut. She earned her J.D. from the University of Georgia School of Law in 2018. Prior to that she was a five-time All-American gymnast for the University of Georgia Gymdogs.

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