Careers

Diversity

With 17 offices, from New York to Los Angeles and Seattle to Orlando, we live and work in communities all over the U.S., collaborating across locations, disciplines and even borders. Our experienced, highly ranked lawyers serve businesses wherever they are and wherever they want to go.

Offices

About Us

Pages

Professionals

Thought leadership: blogs, podcasts, videos, publications, events and news

Insights

Services

Pro Bono

Am Law 100 firm with practices in Business, Digital Assets and Data Management, Intellectual Property, Labor & Employment, Litigation and Tax.

Home | BakerHostetler

ADventures in Law

Oops, I Did It Again: Navigating Social Media Posts for Brands

Carl Hittinger Weighs in on Alaska Airlines/Hawaiian Airlines Merger in Law360 Article

Federal Court Rules False Claims Act’s Whistleblower Provisions Are Unconstitutional

Michelle Tanney, Kevin Edgar, Isabelle Sterling, Jamie Reiner Co-Author Article on Election Betting Contracts Case

<em>Reviewing the Major Plays of 2023</em>

core/paragraph

This past year saw major developments in the world of college sports. From challenges to name, image and likeness (NIL) contracts<a href="#_ftn1" id="_ftnref1">[1]</a> to congressional hearings<a href="#_ftn2" id="_ftnref2">[2]</a> to proposed NCAA guidelines,<a href="#_ftn3" id="_ftnref3">[3]</a> 2023 set the field for a new year ripe for resolution and possibly more challenges.

Major questions include whether college athletes should be considered university employees, what role Title IX can, and should, play in the context of NIL contracts, and how college sports will evolve to accommodate new regulations and guidelines for players, teams, schools and advertisers. How and whether antitrust exceptions may apply to these new rules also remain open questions. Guidelines are still largely made up of a patchwork of state laws and university policies. While federal legislation seems closer now than ever before, a unified approach on how to handle NIL issues is still far from reach, and federal legislators still appear reluctant to step in until stakeholder institutions have determined a unified approach.

In early December, NCAA President Charlie Baker proposed rules to allow schools to directly enter into NIL deals with their athletes. These rules, if implemented, would create a subdivision of Division I (DI) schools that would be allowed to create their own set of procedures and rules for recruiting, transfers and roster size, among other policies. Schools in this new tier would be required to set aside a minimum of $30,000 per athlete for at least half of their athletes on an annual basis. The goal would be that the money could be used to help these athletes continue educational pursuits. Payments out of such a fund would be subject to Title IX, requiring equal distribution among men and women athletes.

The proposed rule may be a starting point to curtail “pay to play” deals. It may also have the effect of internalizing collectives so that they exist in-house rather than externally.

<em>Drawing up the Game Plan for 2024</em>

Stakeholders in the NCAA will meet this month to discuss new rules regarding NIL questions and vote on whether to adopt the proposal. The proposal comes as larger revenue-generating sports, like DI basketball and football, consider the possibility of breaking away from the NCAA and creating their own conferences.<a href="#_ftn4" id="_ftnref4">[4]</a> As the college basketball season heats up and the NCAA’s moneymaking March Madness begins at the end of the first quarter of this year, how the NCAA’s proposed rule will accommodate these sports and their universities will likely come to the fore.

Certain other considerations may include the introduction of a template or universal contract for NIL deals, the effect of NIL deals on a rising risk of sports betting in college sports and the general issue of camaraderie among athletes as schools balance NIL deals with building team chemistry. The impact of NIL deals calls into question the place of amateurism in college sports and even pulls high school sports into the mix as states propose guidelines for NIL deals with high school athletes.

Resolving certain questions related to NIL will also require determining whether the NCAA will receive legislatively enacted antitrust protection, an exemption it has long pursued. Antitrust exemptions are not entirely unheard of, as famously exemplified by Major League Baseball, but recent court decisions have held that antitrust rules apply to the NCAA without exception.<a href="#_ftn5" id="_ftnref5">[5]</a>

As 2023 may very well have signaled headwinds in the world of college sports, 2024 is shaping up to answer some questions while raising others. Still, the focus on the negative impact of NIL may be overshadowing the positive impact that NIL deals can have on community service and advocacy projects. It may also be worthwhile to note that NIL deals may provide women athletes, whose sports are often overlooked and underfunded, an opportunity to even the playing field and build and profit from their own markets. BakerHostetler’s interdisciplinary approach to NIL provides administrators, athletes, advertisers and collectives with the opportunity to fully understand their deals while also providing the necessary legal protections. To stay updated on all NIL- and sports industry-related matters, please contact Industry Marketing Lead Cynthia Keveney at <a href="mailto:ckeveney@bakerlaw.com">ckeveney@bakerlaw.com</a>.

core/separator

<a href="#_ftnref1" id="_ftn1">[1]</a> https://www.bakerlaw.com/insights/flag-on-the-play-nil-an-open-question-for-athletes-advertisers-and-collectives/

<a href="#_ftnref2" id="_ftn2">[2]</a> https://www.bakerlaw.com/insights/flag-on-the-play-key-takeaways-from-congressional-nil-hearings/

<a href="#_ftnref3" id="_ftn3">[3]</a> https://www.espn.com/college-sports/story/_/id/39047353/ncaa-proposes-rule-let-schools-athletes-enter-nil-deals

<a href="#_ftnref4" id="_ftn4">[4]</a> https://theathletic.com/4779329/2023/08/16/college-basketball-coaches-on-conference-realignment/

<a href="#_ftnref5" id="_ftn5">[5]</a> https://www.washburnlaw.edu/publications/wlj/online/volume/61/long-nice-try-ncaa.html

Flag on the Play: 2023 NIL Wrapped

Featured Insights

Related Services

Featured Insights