Maryland is set to become the latest state to offer college athletes the opportunity to profit off their names and likenesses as legislation that would expand athletes’ rights nears final approval in the General Assembly.
The Jordan McNair Safe and Fair Play Act, named after the former University of Maryland offensive lineman who died in 2018 after suffering from heatstroke at a team workout, has passed on third reading in both the House of Delegates and the state Senate.
If the act is signed into law, Maryland would join six states, including California, Colorado and Florida, that have voted to expand college athletes’ name, image and likeness (NIL) rights. More than two dozen states are considering versions of NIL legislation in 2021.
These actions have come as the NCAA’s board of governors continues to debate its position on the issue. Though NCAA leaders have said they will grant athletes permission to profit from their names and images, they delayed an anticipated vote on the policy in January, saying they needed more time to study potential complications with the antitrust division of the U.S. Department of Justice.
Maryland legislators said they’re tired of waiting for action from those who run college sports.
“I think it’s important for the General Assembly to demonstrate to athletes who attend our schools already and to potential student-athletes that we believes they should retain their rights to their name, image and likeness,” said Del. Brooke Lierman, a Baltimore Democrat who sponsored the House version of the Maryland legislation. “Would I like to see the NCAA and the federal government step up and do the right thing? Absolutely. But am I willing to wait for them to do the right thing for our student-athletes? Absolutely not.”
Sen. Justin Ready, a Carroll County Republican who sponsored the bill in his chamber, said the NCAA “continues to kick the can down the road on something that’s really very common sense.”
“If Michigan State can have a presenting sponsorship with Rocket Mortgage, why on earth can we not have an athlete have an endorsement deal?” he said. “What I like about NIL is it allows the athlete to go out on their merits and do it. It’ll help all kinds of athletes with small and large sponsorships, or just being able to go out and run a camp with their name on it. The reason we’re pushing it at the state level is because this is where we can get some action on this issue.”
Florida’s NIL law is scheduled to activate in July (with other legislatures potentially set to join the early-adapter parade), and many observers foresee a standoff between the NCAA and the states as that date approaches. The landscape could be further complicated by an impending U.S. Supreme Court ruling on an antitrust case, Alston v. NCAA, related to compensation for athletes.
NCAA leaders would prefer to operate under a single federal policy, arguing that differing state laws could lead to mass confusion and even confer recruiting advantages to some schools.
Given these potential governance difficulties, the NCAA could seek injunctive relief in individual states, said Julie Sommer, a Seattle-based attorney and former college swimmer who works with the Drake Group for Academic Integrity in College Sport.
“It will be a mess if they don’t,” she said. “We won’t have a federal bill by [July 1] … so if we have a few states that are in effect by then, I don’t see how the NCAA could reasonably exercise oversight over all those states, a lot of big flagship schools, with such an uneven playing field. It’ll be the wild West of NILs with all the state policies.”
Ready said that’s something for Maryland legislators to be aware of “but I’m more concerned about the chaos that would result in our university system in not having the ability to do it while other states are.”
Despite the potential short-term chaos, Sommer expects the pressure applied by states such as Maryland to hasten college athletes’ push for greater rights.
“We’re in that zeitgeist moment for college sports,” she said. “I strongly believe NILs will benefit everyone. A quarterback might get more than an average athlete in a nonrevenue sport, but there’s definitely opportunity across the board.”
NCAA President Mark Emmert recently told The Associated Press he’s optimistic the NCAA will have a NIL policy in place before the start of next football season. “We certainly want to make sure that we can be ready for implementation of those kinds of rules by the time we get to the fall,” he said. “There’s a lot of moving parts and it’s a very challenging issue to get in place.”
The Maryland version of the legislation would bar state universities and outside governing bodies — including the NCAA and individual conferences — from preventing compensation for athletes’ NIL rights. Athletes would be permitted to hire representatives to negotiate NIL deals. They would be prohibited from “engaging in in-person advertising for a third-party sponsor during official and mandatory team activities without prior approval from the institution’s athletic department.” They would not be permitted to use a university’s name, trademark or logo for commercial purposes. Universities would not be allowed to pay athletes for their NIL rights. The NIL portions of the legislation would take effect in July 2023, in line with many other states that have passed or are considering similar bills.
“It gives time for the federal government to act, to create a uniform nation policy if they’re going to, but it doesn’t give them too much time,” Lierman said. “They need to act expediently, because we are not willing to wait forever for the federal government and NCAA to do the right thing.”
There’s also a health component to the Maryland legislation, which would require athletic departments to create guidelines for preventing and treating brain injuries, heat-related illness and other conditions. State universities would be required to report changes in their health and safety policies to the General Assembly every fall.
Lierman said McNair’s death and the sexual abuse scandal involving Michigan State gymnastics highlighted the injustices experienced by college athletes, who face unusual risks at the same time they’re denied basic economic rights afforded to fellow students. She said these injustices are glaring given the hefty salaries paid to coaches and athletics administrators.
