Will North Carolina be left behind as college athletes elsewhere can cash in?
For the first time in more than a year, college coaches in every sport will be able to head back out on the recruiting trail starting June 1. Only a month later, the entire recruiting landscape, pretty much everything they’ve known since they got into coaching, could change again.
Four states have passed laws that will allow college athletes to cash in on their name, image and likeness rights as early as July 1, over the NCAA’s objections. Those laws would allow athletes in those states to be paid to endorse products, monetize their social media accounts and generally benefit from the same advertising economy for their services as any other college student.
Many other states, fearing those early adopters — the SEC strongholds of Alabama, Florida and Mississippi as well as New Mexico — will have a recruiting advantage, are rushing to catch up, whether by passing new laws of their own or moving up the effective dates of laws already passed.
The NCAA, after years of foot-dragging and empty posturing on NIL, is now paralyzed by a major Supreme Court lawsuit that could determine the extent of its powers.
Also paralyzed, it appears, is North Carolina, which has seen no movement whatsoever. Some coaches are starting to get concerned about that.
“Oh, absolutely,” N.C. State basketball coach Kevin Keatts said in an interview. “I want an even playing field. Certainly, I’m not the expert on NIL at this moment, but if one state is able to do it, then I think all states should be able to do it. And if one is not, the NCAA should try to figure out how everybody’s able to do it. But it will be a disadvantage.”
No movement in legislature
State Sen. Wiley Nickel, a Wake County Democrat, has proposed bills in the past two legislative sessions that would liberalize NIL rights for North Carolina athletes, but neither has seen any movement or garnered any bipartisan support. His latest, Senate Bill 324, remains stuck in committee while nationally, the pace of change accelerates.
Arkansas, on Wednesday, became the 11th state to pass some kind of law allowing college athletes to cash in on their NIL rights. Georgia has a July 1 bill awaiting the governor’s signature. South Carolina is rushing an NIL bill through, with the full support of Clemson and USC. California, the first state to pass an NIL bill, may move up its effective date from 2023. It’s all happening fast — too fast for the NCAA to respond.
“We would go into a period in July that would be pretty chaotic where we had some states that allowed it, some states that didn’t allow it,” NCAA president Mark Emmert said earlier this month at the Final Four. “In each of the states, there would be different policies around what was or wasn’t permissible. Between now and then we’ll have to make some decisions about what the schools want to do under those circumstances and how we’d adjust to that new reality. Our hope is that we can get a bill passed in Congress that preempts that chaotic circumstance.”
The assumption shared by many in the industry was that the NCAA would either push favorable national legislation through Congress — or have less favorable legislation pushed upon it — or get temporary injunctions in state courts before July 1 to stop the laws from taking effect. But that was before the Supreme Court took up the Alston antitrust case against the NCAA, which will go a long way toward determining how much power the NCAA actually has to define what “amateurism” really is. That ruling could come as late as the end of June.
In the vacuum left by the NCAA’s inaction, states are rushing to pass their own bills, five in the past month alone. Julie Sommer, a Seattle lawyer and former Texas swimmer who serves on the board of the Drake Group, which advocates for college-athletics reform, tracks NIL legislation across the country. She said at least four states have July 1 bills awaiting governors’ signatures and several others would go into effect upon passage.
“It’s like they’ve turned it into another arms race,” Sommer said in an interview. “Protecting image and athlete rights shouldn’t be an arms race. It should be a statement of fairness and equity. It’s such a basic right to any person, and college athletes as well. Everyone would agree a national uniform policy is the ideal. The question is when.”
NCAA powerless to act
Whatever the NCAA thought it might do to hold off the impending wave of NIL laws, it now appears powerless to stop them. In a meeting with the basketball players behind the #NotNCAAProperty movement this week, Emmert told Iowa’s Jordan Bohannon that there was nothing the NCAA could do to stop the laws from taking effect, Bohannon told the Des Moines (Iowa) Register.
“He said he wouldn’t punish them,” Bohannon told the newspaper. “I countered and asked what about the states that don’t have name, image and likeness? He really didn’t give much detail with that response. He said that he hoped something happened with Congress or the NCAA before that happens.”
Several national bills have been proposed in Congress, from both sides of the aisle with and without the NCAA’s endorsement, but there’s a wide divide, even within political parties, on what a national NIL bill should include. At this point, given the pressing legislative wish list of a new president, it’s not exactly a priority, either.
“Minus a federal law, it’s definitely going to be disorganized chaos,” the Drake Group’s Sommer said. “It’s going to be a patchwork system nobody wanted. How did we get here? Look to the (NCAA) leadership delaying and obfuscating and fighting in court. That’s what’s gotten us here.”
Where does that leave North Carolina?
While former U.S. Rep. Mark Walker, a Greensboro Republican, tried to push an ambitious NIL bill in Washington, no Republicans have taken up the cause in the North Carolina legislature. Even if there’s not bipartisan support for Nickel’s bill, Republicans could still try to push an NIL bill of their own.
Nickel said he hopes even if his bill doesn’t reach the floor, there can at least be some momentum for a study group ahead of next year’s short legislative session.
“Maybe it’s going to take some big recruiting stuff for people to get upset,” Nickel said in an interview. “We’re still pushing this. It just isn’t getting any traction with our Republican colleagues. I’m very concerned about neighboring states getting a recruiting advantage.”
Duke, UNC athletic directors opposed
Boosters of all teams should want North Carolina to unchain NIL rights for competitive reasons alone. While the athletic directors at Duke and North Carolina have pushed for restraint and caution, their counterpart at South Carolina, former N.C. State baseball coach Ray Tanner, testified this week in favor of that state’s NIL bill under consideration. UNC just this month introduced a major group licensing deal with its former athletes, a sort of proto-NIL deal.
Meanwhile, schools everywhere — including Duke and North Carolina — have signed new deals with consultants like INFLCR, Opendorse and Altius to help their athletes navigate the new NIL world. INFLCR, pronounced “influencer,” was recently acquired by Durham’s Teamworks.
Florida is, for now, the only state in the ACC footprint with a July 1 NIL law, potentially a huge recruiting advantage for Florida State and Miami against their conference peers. Right now, no one really knows what that’s actually going to look like. Just about anything could still happen in the next two months, and the ACC in general will have more clarity on where it stands as a league after next month’s (virtual) annual meetings, but the trends couldn’t be clearer.
“It’s always a moving target and I think we’re finding out a lot every day about it,” Keatts said. “There’s more information daily about what’s happening and what may happen. We still haven’t gotten to the point where we can talk seriously about it.”
This much, though, is certain: In the national race to give athletes their NIL rights, in the absence of leadership from the NCAA or Congress, it’s either lead, follow, or get left behind, and North Carolina is being left behind.
