Attorneys Representing College Athletes Comment on NCAA’s New Rules on Name, Image and Likeness Compensation
SEATTLE – Today, the NCAA voted to suspend certain amateurism rules related to name, image and likeness (NIL), and attorneys at Hagens Berman who have and continue to represent college athletes against the NCAA for rights to compensation for their NIL are speaking out about the NCAA’s abrupt policy change.
To put this in perspective Hagens Berman started the war regarding NCAA rules prohibiting NIL compensation for athletes with the “Keller” case and have continued that fight, including the historic win in the Alston case in which the U.S. Supreme Court struck any notion that the NCAA is entitled to any special deference, according to attorneys.
“The NCAA’s policy change is a result of our historic win in the Alston case as well as the growing acknowledgement among fans and legislators that the NCAA is exploiting athletes,” said Steve Berman, managing partner of Hagens Berman and co-lead attorney for the class in the historic Alston case and lead counsel in the current NIL case.
“In changing its rules to adapt to measures it previously swore under oath in court would be ruinous to college sports and fans’ adoration, the NCAA is admitting what we’ve known all along: that consumer demand is not tied to athletes’ earnings, and for many reasons, college sports can have a future that is both fair and sustainable for athletes.”
“If we don't see the imagined pandemonium that the NCAA has threatened in its fearmongering – schools cancelling programs left and right, fans cancelling season tickets to the upcoming season – we will learn that consumer demand is truly independent of whether, and how much, an athlete earns from their name, image and likeness,” Berman added. “The excuse for not sharing revenues with athletes will be exposed as a falsehood, and an entire new revenue sharing scheme will emerge.”
What Do the NCAA’s New Policies Mean?
On June 28, 2021, the Division I Council voted to recommend the Division I Board of Directors adopt the interim policy. According to the NCAA, the temporary action would remain in place until federal legislation or new NCAA rules are adopted.
“We see it this way: this set of rules argues that the fate of college sports is not seriously in jeopardy if the NCAA were to get out of the business of fixing NIL prices entirely,” Berman said.
Under the new NCAA NIL policy, college athletes can engage in NIL activities that are consistent with the law of the state where the school is located. Student-athletes who attend a school in a state without a NIL law can engage in this type of activity without violating NCAA rules related to name, image and likeness. College athletes can use a professional services provider for NIL activities. Student-athletes should report NIL activities consistent with state law or school and conference requirements to their school.
“After years of litigating against the NCAA and hearing its tired excuses defending its abysmal treatment of athletes, its new NIL policies cause me to question why one should believe what the NCAA says about direct pay from schools, since they've maintained claims that NIL payments would blur the line between amateur college and professional sports,” Berman said.
“In short, the NCAA has ended up adopting these rules because it thought that by opening up the market, it was making things fairer for everyone,” he added. “This is being done to improve competitive balance, even though the NCAA has incessantly argued competition like this is bad for balance.”
Ongoing NIL Litigation and Legislation
The subject of college athlete NIL compensation has been a hot topic in both the courtroom and Congress. Last week, U.S. District Judge Claudia Wilken upheld antitrust claims brought by Berman’s sports litigation team on behalf of NCAA college athletes regarding NIL compensation in a strongly worded decision in the athletes’ favor.
In Judge Wilken’s order, all of the claims brought in Hagens Berman’s case House v. NCAA were upheld amid the NCAA’s motions to dismiss in a sweeping victory for plaintiffs.
The lawsuit, originally filed June 15, 2020, in the U.S. District Court for the Northern District of California, accuses the NCAA and conferences of illegally limiting the compensation that Division I college athletes may receive for the use of their NILs and athletic reputations. The complaint says the entities violated federal antitrust laws in abiding by a particular subset of NCAA rules that prohibit college athletes from receiving anything of value in exchange for the commercial use of their NIL.
In Congress, members of the Senate Commerce Committee are considering a proposed bill from Sen. Roger Wicker, which has the potential to rob hundreds of thousands of college athletes of the rights to compensation for NILs. The firm is urging college athletes to stay informed about what they can do to help Save NIL.
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About Hagens Berman
Hagens Berman Sobol Shapiro LLP has represented classes of college students before, achieving a $208 million settlement against the NCAA concerning antitrust-related student scholarship limits, a combined $60 million settlement against Electronic Arts and the NCAA regarding player likeness rights in videogames, and an additional settlement valued at $75 million regarding concussions and safety protocols and a trial victory overturning NCAA rules limiting education based compensation. The firm’s sports litigation legal team also includes former NCAA athletes.
Hagens Berman operates in 10 cities worldwide. The firm’s tenacious drive for plaintiffs’ rights has earned it numerous national accolades, awards and titles of “Most Feared Plaintiff’s Firm,” MVPs and Trailblazers of class-action law. More about the law firm and its successes can be found at hbsslaw.com. Follow the firm for updates and news at @ClassActionLaw.