Steven Appelbaum, Andrea P. Brockway, Amy L. Piccola, and Tricia M. Kazinetz, Saul Ewing Arnstein & Lehr,

On Oct. 29, to the surprise of many observers and in response to mounting public pressure and the recent groundswell of proposed and passed legislation at the state and federal level, the NCAA's governing board voted unanimously to allow college athletes to be compensated for the use of their name, image, and likeness (NIL). The decision does not, however, renounce the NCAA's commitment to amateurism; it permits in the abstract student-athletes "the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model." This begs the question: how, exactly, will the NCAA effect real change without significantly altering the collegiate model? Punting in the immediate, the NCAA is continuing to gather feedback from stakeholders through April 2020. Only time will tell how (and if) the NCAA's decision will translate into actual rule change. Creating even more uncertainty for Florida colleges and universities is the question of how pending state legislation might intersect, or conflict, with the NCAA's anticipated new rules.

 While institutions and student-athletes await further developments from the NCAA, state legislators continue to press ahead, proposing, and passing, legislation that tackles the issue of student-athlete compensation directly. Florida was one of the early states to propose such legislation, with bipartisan support for NIL compensation reflected in complementary bills proposed by state Reps. Kionne McGhee (D) and Chip LaMarca (R). The most significant difference between the two bills is the effective date: McGhee's bill (HB 251) would be effective Jan. 1, 2023 to coincide with the implementation of California's Fair Pay to Play Act (passed on Sept. 30, 2019) while LaMarca's bill (HB 287) would be effective Jan. 1, 2020. Largely modeled after California's passed legislation, Florida's proposed bills regulate the actions of the various stakeholders impacted by NIL compensation, including student-athletes, higher education institutions, and athletic associations, conferences, and other groups or organizations with authority over intercollegiate athletics, including the NCAA. Unlike the California act and the bills proposed in some other states, both of the Florida bills apply to community colleges, with HB 251 also calling for the creation of a Community College Athlete Name, Image and Likeness Working Group to provide a report by 2021.

Florida's proposed legislation: allows student-athletes to obtain licensed, professional representation, including attorneys (who must be admitted to practice in Florida); bars student-athletes from entering into a contract for NIL compensation if a provision of that contract conflicts with a provision of the school's team contract; and requires student-athletes who enter into a contract for NIL compensation to disclose the contract to a designated school official.

The proposed legislation places certain obligations and restrictions on colleges and universities. Florida institutions may not: prevent a student-athlete from receiving NIL compensation; compensate prospective student-athletes for use of their NIL; revoke scholarships (which are not considered "compensation") as a result of a student-athlete receiving NIL compensation; and include in any team contract provisions that prevent a student-athlete from using their NIL for commercial purposes when that student-athlete is not engaged in official team activities. Additionally, colleges and universities that assert a conflict between a student-athlete's contract for NIL compensation and a team contract must disclose to the student-athlete or his legal representative the contractual provisions that are in conflict. Further, under the framework of the proposed Florida bills, athletic associations may not: prevent a student-athlete from receiving NIL compensation; and prevent a college or university from participating in athletics as a result of a student-athlete receiving NIL compensation.

Florida colleges and universities should be cognizant of, and start planning to comply with, the obligations and restrictions imposed by the pending state legislation (and the upcoming changes to the NCAA's rules). For example, the Florida bills require student-athletes to disclose any NIL compensation to an official designated by the institution. Similarly, institutions should be prepared to analyze contracts entered into by student-athletes for NIL compensation to determine if any provisions conflict with the team contract. In short, the proposed legislation creates an array of legal challenges that should be on the radar of those in the field.

Steven Appelbaum is a counsel with Saul Ewing Arnstein & Lehr in Miami. He represents individuals and businesses in complex disputes.  

Andrea Brockway is a counsel with the firm in Philadelphia. She assists clients who are facing complex commercial litigation in federal and state courts, particularly in the higher education industry. 

Amy Piccola is a partner with the firm in Philadelphia. She advises institutions of higher education on matters involving issues of compliance, policy and liability, particularly with regard to student conduct matters, Title IX and other civil rights and discrimination statutes, and the Clery Act.

Tricia Kazinetz is an associate with the firm in Philadelphia. She is a member of the litigation department.