Kentucky’s NIL Executive Order a First as NCAA Ducks and States Adapt
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As the NCAA’s name, image and likeness saga marches towards a July 1 date where college athletes in at least six states, and possibly all 50 states, will be able to hire agents, sign endorsement deals and sponsorship contracts, Kentucky Gov. Andy Beshear on Thursday became the nation’s first governor to sign an NIL executive order.
The order, which takes effect on July 1, is significant in that it will ensure Kentucky colleges use the same set of NIL rules. In states without NIL statutes—or, now, executive orders—schools are expected to set their own NIL policies in accordance with yet-to-be-clarified NCAA guidelines. For compliance officers in university athletic department, this uncertainty on NIL rules is disruptive and unwelcomed; officers in Kentucky colleges will now have greater certainty as July 1 nears.
Beshear’s order tracks basic concepts seen in NIL statutes. It forbids pay-for-play and prohibits endorsement deals that would conflict with those of the school. The order also allows schools to require their athletes disclose NIL contracts. The development was first reported by Eric Crawford of WDRB.
In addition, Kentucky universities will be able to adopt “reasonable” rules and limitations pertaining to permissible types of deals. To that end, the order notes that schools may find contracts for the promotion of alcohol, tobacco, firearms and sexually oriented activities to be incompatible with school values and mission statements. Also, the order directs colleges to provide education to athletes on financial literacy, media and brand management and time management.
The executive order by Beshear, an attorney by trade and former attorney general of Kentucky, could encourage other states’ governors to pursue orders in their states. Executive orders can be challenged in court on grounds they exceed the governor’s authority to act without the blessing of the legislature. A challenge to Beshear’s NIL order might not be in the works, however, as he consulted with the state legislature and schools before making this move. The fact that the order captures generally accepted NIL principles also suggests it probably won’t attract opposition.
Meanwhile, the NCAA has shifted once again in its NIL plans. After opposing NIL for many years, then supporting a restricted and complicated vision of NIL, then seeking assistance from Congress to pass a federal NIL statute, the NCAA is now pursuing a plan where schools in states without NIL statutes would gain autonomy to determine NIL policies.
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