Name, image, likeness legislation on the way to the governor

From communication firms to restaurants and cryptocurrency agencies, Virginia’s top college athletes had already started taking advantage of the change in NCAA rules allowing them to profit from their name, image and likeness before the Virginia legislature passed a law last week outlining the process in the commonwealth.

Indeed most of the provisions in Senate Bill 223 had already been incorporated into the state’s budget during a General Assembly special session last August. Numerous attempts to get ahead of the curve in this movement started by California had been filed in 2020 and 2021 before the bill by Sen. Jeremy McPike’s, D-Prince William, garnered bipartisan support. 

Before Del. Terry Austin, R-Botetourt, introduced a substitute, the law would have prohibited higher education institutions from paying student-athletes in the recruitment process or for their performance. Both Austin and McPike said there was no need for the clause since the NCAA guidelines already banned such agreements. 

“We wanted to keep it simple and have the NCAA rules govern that,” McPike said.

The change still received broad support from legislators. It passed the Senate unanimously and only four delegates in the House opposed it. 

“It’s a very gray area,” said Del. Nadarius Clark, D-Portsmouth, who was one of the “no” votes. “We shouldn’t be betting on our students. We shouldn’t be gambling on our students. They’re students first and athletes second.”

All that remains for it to become law is the signature of Gov. Glenn Youngkin, who himself was a college athlete — playing basketball for Rice University. Under the new law, universities and athletic associations or conferences can’t prevent student-athletes from hiring an agent or lawyer, declare them ineligible for competition or modify scholarships based on the students’ earnings.  

There are also restrictions on the deals college athletes can profit from. The law bans them from earning compensation for any agreements related to alcohol, drugs including performance-enhancing drugs, adult entertainment, weapons, tobacco, nicotine and gambling. Any use of a player’s name and likeness from which they are compensated must be outside of academic and team-related activities and cannot use the university’s facilities or equipment. 

The only instance where institutions may restrict athletes from profiting from their name, image and likeness is if it conflicts with any previous agreements between institutions and student-athletes. 

“Fantastic athletes get injured and that’s it,” McPike said. “It’s only fair to have a small window of opportunity where they could earn income for their name, image and likeness.”

Additionally, student-athletes have to disclose any agreements to their institutions in processes set forth by the universities. 

The bill’s passage comes as Virginia Tech’s athletic department announced a partnership on March 3 with INFLCR, a software platform that will help facilitate NIL deals between student-athletes and businesses, according to a news release from the athletic department. Once businesses register, they can begin connecting with the student-athletes who opt into the program. Neither the university nor INFLCR will be involved in the negotiations.  

“The Virginia Tech brand resonates so strongly across our region, and we’re pleased to provide this opportunity for our student-athletes to leverage that brand along with their own unique personalities in partnership with various companies and business interests,” Virginia Tech’s Director of Athletics Whit Babcock said.

The Hokies’ football team already has experience with NIL deals, with its entire offensive line securing a sponsorship with Mission BBQ last October, according to a Richmond Times-Dispatch article.

In anticipation of the legislation, the University of Richmond created the Spider NIL Initiative in conjunction with the Robins School of Business and the Richmond School of Law to provide programming for student-athletes in the areas of marketing, strategy, management, brand identification and negotiations.

Other college athletes have become brand ambassadors, like George Mason basketball players Josh Oduro and D’Shawn Schwartz who share content on Twitter for Purple Strategies, a corporate reputation strategy firm. During his time with the University of Virginia, point guard Kihei Clark allowed My NIL, a digital collectible agency, to use his name, image and likeness in the minting of NFTs, a digital asset that can be sold or traded with cryptocurrency.