Yesterday, October 15, the University at Buffalo Sports and Entertainment Law Society (BSELS) hosted its second Sports Law Round Table of the fall semester. Our esteemed panel consisted of Paul Perrier (’08), USC Deputy Athletic Director, Kristina Minor, Northwestern Associate Athletic Director for Compliance, and Ellen Ferris, American Athletic Conference Associate Commissioner. The panel covered everything from their career path in administration to name, image and likeness (NIL).
All three panelists have a substantial background in collegiate athletics, whether they played a collegiate sport and/or worked their way through various positions within an athletic department. While Paul, Kristina, and Ellen did not take the same path to get where they are now, all three have their Juris Doctorate and worked for the NCAA in one capacity or another over their careers. While they enjoyed their time at the NCAA, they were told that they needed to “get on campus” to really be immersed in collegiate athletics. And that is exactly what they did.
Paul, a UB Law graduate (’08), mentioned that his legal background has most definitely assisted him in his role as an athletic administrator over the years. For those still in law school looking to enter a profession in collegiate athletics, the skills you learn in law school will certainly be applicable in an administration setting, even if you are not technically practicing law. Paul, Kristina and Ellen all agreed that many of these skills translate extremely well into athletics.
Administrators have to be able to bounce ideas back and forth with everyone in the department, but also have to be able to question the status quo. Communication is essential and is not a skill necessarily taught in an undergraduate setting. As a chemistry major in undergrad, Paul noted that questions were not asked because the answers were almost always black and white. When he got to law school, however, students were questioning everything and even arguing with professors on certain topics. Being able to discuss things and communicate ideas is a vital function of an athletic department and having this skill before entering the field can lead to long term success.
Two skills that all three panelists discussed and agreed were essential in their careers were issue spotting and problem solving. These two techniques are drilled into our brains throughout school and are something most lawyers perfected (or at least tried to perfect) over the years. Both of these skills can be very effective and beneficial to an administrative team because problems are bound to arise. Whether the issue is legally related or not, Paul, Kristina, and Ellen all attack it with the same skill set that made them successful as a law student and/or lawyer.
Kristina mentioned, however, that not everyone in athletics administration has a law degree (and it’s likely that very few do), so it’s helpful to others in the department to have someone with a legal background to turn to when problems are presented. Lawyers are very analytical; we are able to analyze a set of facts, spot potential issues and conflicts, and advise accordingly. It might not always be clear that there is a potential legal complication and having a lawyer, or former lawyer, on your side can mitigate that potential risk. Being able to advise someone within the department that their proposed action may have legal ramifications is imperative to the success of the athletic department as a whole.
Name, Image and Likeness
The other highly discussed topic by the panel was NIL. The NCAA finally submitted its proposal for NIL legislation this past week, however, formal approval would not come until January at the NCAA Convention and would be enacted at the start of the next academic year. Although there are certain restrictions, the legislation would broadly grant athletes the right to use their name, image and likeness (NIL) to:
- Promote private lessons and business activities and operate their own camps and clinics, as long as they do not use school marks.
- Profit from endorsing products through commercials and other ventures, as long as they do not use any school marks or reveal the school in which they attend and refer to their involvement in intercollegiate athletics generally.
- Be compensated for autograph sessions, as long as they do not occur during an institution event or competition and no school marks or apparel is used during the sale of the material.
- Solicit funds through crowdfunding, such as GoFundMe, for non-profit or charities, catastrophic events, family hardships and educational experiences, such as internships.
This proposal comes after California’s Fair Pay to Play Act was signed into legislation last September. The twenty two pages document submitted by the NCAA will continue to be updated and modified by both the working group and the D-I Council over the next two months.
Nevertheless, the NCAA’s legislation may be moot. So far, at least twenty states have either considered or passed NIL laws, which forced the NCAA to ask for help from the federal government to create legislation to supersede all of the state laws. Now, Congress is expected to draft and pass its own NIL legislation at the NCAA’s own request. A half-dozen lawmakers are in the process of drafting or have already introduced NIL bills, including the “College Athletes Bill of Rights” I discussed in a previous article and the most recent of which came from Rep. Anthony Gonzalez (R-Ohio).
Because Florida’s law would take effect July 2021, there is sort of a deadline for federal legislation. Without a universal rule governing athlete compensation, schools in Florida could be playing by different rules starting with the 2021 football season.
Paul, Kristine, and Ellen all agreed that change around NIL rights for student athletes is inevitable. Now, it’s just a fight over what those rules should be. Ellen mentioned, and most everyone agrees, that it would be extremely hard to have fifty states with fifty different laws. One federal law or NCAA regulation is much more ideal.
One of the biggest concerns of athletic administrators is the safety and well-being of their student athletes. Because this will be new territory for most 18-22 year olds, some sort of guidance is needed. The NCAA’s proposal, California’s Fair Pay to Play, and likely federal legislation would allow student athletes to retain agents for limited purposes. Paul mentioned that USC is already using Influencer and that there would be a smooth transition to add student athletes into the mix for agency purposes.
Most can agree that compensation for a student athlete’s name, image and likeness has been a long time coming. When we see schools building waterfalls, mini golf courses, and even a lazy river, that’s because NCAA member schools are prohibited from compensating their student athletes for their NILs. We live in a society where athletes are idolized, yet student athletes are not permitted to make money when their face is slapped on a t-shirt or there is an avatar of them in a video game. Although there are many hurdles to be faced once NIL laws go into effect, Paul, Kristina, and Ellen are excited and ready to face those challenges head on.