NC is so far behind on NIL reform, it may end up in front with NCAA bare-bones rules
While the NCAA needlessly dithered for years on name, image and likeness rights for its athletes -- a reckoning that has arrived against its will, posthaste, as of Thursday -- North Carolina hasn’t been any better.
It’s among the states with no legal guidance whatsoever when the first state laws elsewhere take effect July 1. The NCAA, in response to the laws passed elsewhere, is expected to throw up its hands and let schools in those 28 states make up their own rules for dealing with this new NIL world where college athletes will be allowed to sign endorsement deals, turn massive social-media followings into advertising income and conduct summer camps, among other basic rights normal students are allowed to enjoy.
Which means North Carolina may have fallen so far behind on this, it’s actually ahead of the curve.
Time is a flat circle.
Thanks to the NCAA’s glacial inaction and galactic incompetence, what was shaping up to be a recruiting disadvantage for North Carolina schools may turn out to be a huge advantage. Schools here will be free to set NIL rules without any of the onerous restrictions other states have imposed, like Georgia’s provision that requires athletes to share NIL income with others. (Schools there have said they won’t enforce that provision.)
It’s really not that complicated for schools to come up with their own policies: as sports economist Andy Schwarz tweeted, just cut-and-paste the California or New Mexico laws, which athlete advocates consider to be the most fair. (Schwarz helped write the California bill.) Done and done. Send the man a check.
It should never have come to this, of course. The NCAA dithered and dithered, made a big splash by agreeing in principle to liberalize NIL rights last year, then continued to dither and dither. By the time the Supreme Court ruling against the NCAA in the Alston case earlier this month raised pointed questions about the NCAA’s ability to restrict any kind of athlete income in light of future antitrust lawsuits, it was too late to do anything substantive anyway.
The NCAA spent most of its energy begging Congress for help only to walk away empty-handed after a bipartisan shrug. Congress may eventually pass federal NIL legislation, but it won’t be on the NCAA’s timetable and it almost certainly won’t come with the antitrust exemption the NCAA desperately wanted. The $301,553 the ACC spent on NIL lobbying in 2020 was money well spent.
So with a half-dozen state laws set to take effect July 1 -- Oregon became the seventh on Tuesday -- ACC commissioner Jim Phillips was one of several power-conference commissioners who came up with the duct-tape solution the NCAA is likely to employ: Schools and athletes will follow the laws in their states, with minimal guidance from the NCAA. No state law? You’re on your own.
That latter group includes North Carolina, somewhat curiously so. Two NIL bills that would have brought North Carolina in line with other ACC states like Florida, Georgia, South Carolina never even got a shout in the legislature. Both were primarily sponsored by Sen. Wiley Nickel, a Democrat from Wake County, in a Republican-controlled Senate, with predictable results.
That may not be a political coincidence: While South Carolina athletic director Ray Tanner testified in favor of NIL legislation in that state, North Carolina’s Bubba Cunningham and Duke’s Kevin White were among those trying to slow the adoption of NCAA rules allowing NIL. (That didn’t stop UNC from partnering with NIL consultant INFLCR on an NIL tracking platform for its athletes.)
Gov. Roy Cooper has not followed the lead of his counterparts in Kentucky and Ohio in doing it by executive order, if that’s even legal under state law, all of which leaves North Carolina with no kind of statutory guidance on the books.
“Our office is reviewing the issue and the potential for steps within North Carolina law in the absence of action by the General Assembly,” a spokesperson for the governor wrote in an email.
All of this inaction led to concerns over whether this could leave North Carolina’s colleges at a recruiting disadvantage, only for the NCAA’s desperate scramble to pave over its own indecision to leave the state in what may end up being the most advantageous position.
In the wild, wild west of NIL that begins Thursday, nowhere will be wilder than the states without laws or executive orders. As schools here scramble to come up with their own policies on short notice, they’re free to do it without any restrictions.
If they’re smart, they’ll make it as advantageous to their own athletes as possible, but that’s a big if.
North Carolina fell so far behind it ended up in front, like lapped traffic.
This story was originally published June 29, 2021 at 2:33 PM with the headline "NC is so far behind on NIL reform, it may end up in front with NCAA bare-bones rules."
