On April 20, 2022, the state of Tennessee passed a bill addressing Name, Image and Likeness (NIL). NIL is a term that describes an athlete’s ability to be compensated when sponsors or company’s use the athlete’s name, image, or likeness. This amended their already standing law by adding the provision that “An athletic association’s governing actions, sanctions, bylaws, and rules must not interfere with an intercollegiate athlete’s ability to earn compensation and must not otherwise impact an intercollegiate athlete’s eligibility… unless the intercollegiate[.]”
In its essence, this restricts an institution like the NCAA from implementing sanctions that punish an athlete and restrict their ability to earn compensation through NIL.
This recent law played an important role when the University of Tennessee’s football team faced over 200 violations of NCAA policy. These included eighteen Level I violations which are the most strictly enforced and face the harshest punishments.
It is not uncommon, when a team commits Level I violations, for the NCAA to employ a postseason ban, commonly known as a bowl ban, as a punishment for these types of offenses. These restrict teams from playing in conference championships, the college football playoffs, and bowl games which can prevent a program from receiving millions of dollars in revenue.
An internal investigation by the University of Tennessee revealed multiple violations and lead to the university firing then head football coach Jeremy Pruitt. It was discovered that Jeremy Pruitt gave illegal payments to multiple recruits who later enrolled at the university. The program also wrongfully gave athletes money for car payments, meals, hotels, and more, all of which is prohibited by the NCAA rules that regulate recruiting.
On March 31, 2023, while the NCAA was deliberating on appropriate punishments for the University of Tennessee football team, Tennessee Attorney General Jonathan Skrmetti submitted a letter to the NCAA Vice President of Legal Affairs Scott Beary. Despite this letter being a late submission, it was accepted because it was “pertinent to the institution’s arguments with respect to … the imposition of penalties.” Skrmetti argued that the imposition of a bowl ban would violate the Tennessee NIL Bill because it “would restrict the athlete’s capability to earn money via NIL to the rate they would otherwise.” Skrmetti wrote that “[t]hese rules are consistent with basic human decency,” and that “[k]ids who do no wrong should not be punished.” He also threatened to pursue litigation under this law if a postseason ban was levied against the football team because “NCAA rules cannot supersede Tennessee law.”
Likely as a result of this letter, the NCAA did not impose a postseason ban and instead fined the university $8 million, the forfeiture of eleven program wins from their 2019-2020 seasons, the loss of twenty eight scholarships and thirty six official visits over the course of a five year probationary period, and other various fines. These fines are noticeably greater than the fines that have been imposed on other programs for similar offenses in the past but is intended to impose the same financial penalty that the University of Tennessee would have faced had they been banned from postseason play.
This clash between state law and traditional NCAA sanctions and punishments represents what will likely become a more common occurrence as states impose laws that regulate NIL within their boundaries. It appears that the NCAA elected to rethink its traditional sanctioning methods in order to avoid a clash in courts that would likely garner national headlines and potentially lead to courts formalizing Skrmetti’s assertion that state law is a superior authority to the rules and regulations of the NCAA. While Tennessee’s law only regulates its universities and collegiate athletics, other states like Texas are also pushing the boundaries of state powers.
Unless there is a formal court ruling or federal legislation passed that places NCAA policy above state law, there is likely to be a growing patchwork approach the NIL as states enact their own laws. This could potentially lead to non-uniform enforcement for offenses for different programs solely based on what state they reside in. This lack of uniformity has serious potential to give schools in certain states a serious edge in the recruitment of athletes as some will be able to offer more in the form of compensation to both athletes and donors who contribute to the institutions. Ultimately, large schools in states with flexible laws regarding NIL will likely be able to offer recruits the most compelling compensation packages which leaves smaller institutions or institutions in stricter states at a severe disadvantage.
Jack Kinney is a second-year student at Wake Forest University School of Law who recently joined the editorial staff of the Journal of Business and Intellectual Property Law. In 2022 he graduated from Wake Forest University with a major in Business and Enterprise Management and a minor in Political Science. Jack currently serves as the Treasurer of the Wake Forest chapter of the Asian Pacific American Law Student Association (APALSA).
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