Photo Via: Islamorada Beer Company Twitter
NIL laws are still uncertain, and a college athlete signs the first NIL agreement with an alcohol company
July 1st, 2021 marked a historic day in college sports. The state of Florida led the charge and numerous states — Alabama, Georgia, Mississippi, New Mexico, and Texas — followed in making Name, Image, and Likeness (“NIL”) laws effective as of July 1st. The National Collegiate Athletic Association (“NCAA”) — in a complete, calculated and well-thought out plan — decided to announce that there would be no restrictions on NIL rights for all athletes under the NCAA umbrella.
Mark Emmert released this statement, “This is an important day for college athletes since they all are now able to take advantage of name, image and likeness opportunities. With the variety of state laws adopted across the country, we will continue to work with Congress to develop a solution that will provide clarity on a national level. The current environment — both legal and legislative — prevents us from providing a more permanent solution and the level of detail student-athletes deserve.”
Well, if you have been following — or not — you know that no universal policy exists. In fact, thus far, many states still have extremely unclear NIL laws, if any at all. In New York, Senate Bill S5891C, sponsored by NY Senator Kevin S. Parker, has passed in the Senate. However, the adjacent bill in the house, Assembly Bill A5115B, is still in the committee. Thus, there is no universal policy OR state policy as guidelines for athletes to follow.
This leaves the burden to schools, like the University at Buffalo (“UB”), to guide their student-athletes and even local businesses on NIL guidelines. This is an incredi(bull) initiative, but that also means UB and other New York schools, such as Syracuse University, are playing by different rules. Now we can discuss all the recruiting advantages and disadvantages to allowing schools to enact their own policies, but this goes even deeper than that. Forget about schools within the same state, what about all the schools within the same conference in different states?
The Mid-American Conference (the “MAC”) has 12 schools in five different states. States with NIL laws within the MAC are Illinois (2021), Michigan (2022), and Ohio (2021). New York (in progress) and Indiana (n/a) are running with no state guidance.
So, what does this all mean: each school in the MAC has its own school policies. Many of the school policies are derived from the state laws, as well as the schools’ own guidelines. I.e., some schools do not allow their student-athletes to work with certain products or brands such as tobacco, marijuana, gambling, or alcohol endorsements. However, as discussed, some states do not have policies and that means the MAC conference itself has schools competing with one another without the same NIL policies — which in return means schools within the MAC have recruiting advantages over other schools on a state level, a conference level, and a school level!
This brings us all back to the state that started this all, Florida. (Sorry, California, you walked so Florida could run.) Florida Atlantic University (“FAU”) quarterback N’Kosi Perry (“Perry”) signed an NIL deal with Islamorada Beer Company (“IBC”) in early September. IBC is a Florida based alcoholic beverage company and created national headlines with the deal. Perry, 23, can legally drink, and he made a deal that many swore would never be permissible: an NIL deal with an alcohol-based company.
The deal itself is brilliant. Few nationally recognized IBC — now it is making national news. Perry, a pioneer, will forever be known as the first college athlete to strike a deal with any of the forbidden four industries (tobacco, marijuana, alcohol, and gambling). This is going to be frightening for other schools and the NCAA. College athletes will use Perry as a precedent to sign any deals that they choose. If one school bans it, an incoming recruit can switch to attend a school that permits it. Of course, it is also possible – and even likely – that lawsuits that may arise from what may be perceived to be unfair restrictions upon college athletes.
Nevertheless, all the blame is on the NCAA. Congress is trying to play surgeon and stitch the wounds. Schools like UB are like an intensive care unit, trying to maintain on the fly as they anticipate universal state policies.
3rd year law student and Co-President of the Buffalo Sports ands Entertainment Law Society. I enjoy writing and learning more about the intersection of business, sports, entertainment and law.