Florida's NIL Law is More Rorschach Than Superman
Amidst D1 NIL vote delay, don't look to first state law as a hero
Surprising no one, the NCAA D1 Council will probably break the NCAA’s promise to vote on new by-laws governing college athletes’ use of their publicity rights today. That’s seemingly put the entire organization on a collision course with July 1, when Florida’s law attempting to regulate the same activity within its borders is currently set to take effect. The potential of that state-level law to actually force the NCAA or any of its member institutions to respect athletes’ rights in this way is folly, though. Like Rorschach in Watchmen, it was never designed to save the day.
The law does nothing to strengthen the positions of athlete-employees of NCAA-member institutions in the state. In fact, it gives those colleges and universities leeway to continue to exploit campus athletic workers with the blessing of state law.
Florida’s NIL law whispers “no” to athletes
Most of the tenets of this law actually try to define college athletes as “amateurs” and not the employees of these colleges/universities they actually are. There is some language that feigns some responsibility on the part of the institutions to respect athletes’ limited publicity rights. However, it’s the weakest part of the law by far.
The law explicitly states athletes can hire representation to assist them in negotiating access to their persons, but lets the NCAA and athletic conferences dictate who that representation will be
The law restricts which parties athletes can provide their services to depending on whether the college/university has a conflicting sponsorship with another company in the same industry
The law gives an unnamed third party veto power over college athletes’ publicity deals. It fails to set any oversight or standards for that company, opening the door to the NCAA and/or its member institutions unilaterally deciding which company will fill that role and how it will operate
The law fails to codify any actual penalties for institutions’ continued theft of athlete-employees’ persons
Moreover, there is language in the law that explicitly states it’s a violation for any Fla. college or university to share the revenues that campus athletic workers’ labor produces with those athlete-employees. College athletes are the only people in the state whose employers would violate state law (should this law actually take effect in its current form) if they did the right thing. Perhaps the only good thing about this law’s weakness is that there is no prescribed penalty for a college or university who defies the law on this point, either.
Regardless of how flawed this thinly veiled attempt to codify the NCAA’s chattel economy (no one should miss the irony of this happening in a former slave state) into law is, it may never see the light of day.
Congress is the end game
The NCAA and its members have one objective: to maintain the status quo to the greatest degree possible. That’s why even though most of the language of Florida’s law actually works to their advantage, they won’t let a paltry state edict dictate their behavior. NCAA-member institutions, even those in Fla., won’t abide by the tenets of this law starting on July 1. There’s no penalty for ignoring it and an immediate, simple, remedy if an athlete-employee or several of them try to invoke the law’s flaccid, minuscule, language in their favor through state courts.
If a state court should actually enjoin a college or university in the state from continuing to treat campus athletic workers as their absolute property, the NCAA will simply seek to invalidate this Fla. law in federal court. At the very least, they’ll ask a federal court to enjoin the enforcement of the law, pending either the NCAA’s revision of by-laws on this matter or a national standard from Congress.
It’s identical to the Trump healthcare and infrastructure plans that were always coming but never arrived. As long as the NCAA and its members can continue to delay, calling no longer stealing from athlete-employees what’s theirs “complicated” and waxing eloquent about the need to preserve “amateurism” for campus athletic workers only, that’s their ace in the hole.
With the Supreme Court set to rule on Alston v. NCAA eventually and possible involvement from the US Department of Justice on antitrust grounds, the NCAA has further ammunition to convince a federal judge to bar the effects of the Fla. law on its members. Their hope is that the US Congress will eventually give them a codified exemption to the principles of economic justice and human dignity in the same way that Florida has. The point of distinction is the source. All of those institutions want the same license to rob their athlete-employees of the share of revenues they deserve, not just those in the Sunshine State.
If college athletes look up to this law and shout, “save us!” in July, the state will whisper “no.” Whether that’s because it can’t or it won’t has no real meaning. Either way, campus athletic workers hold the power to save themselves. When they strike, they win.
As many as three-quarters of the American football players at Virginia Tech contracted a deadly virus that could cause long-term heart and lung damage. Neither the ACC, NCAA, nor Virginia Tech have committed to covering the cost of treatments that these people could need. In addition, the athletic department continues to put other athlete-employees at even greater risk of contracting the same virus by continuing to hold indoor sporting events such as men’s and women’s basketball.
Staying in Florida, the COVID-19 testing and vaccination site at Hard Rock Stadium in Miami will cease operations temporarily for an American football game. For nearly an entire day, in the time of which thousands of people in this country alone will die from this virus, life-saving services will not continue to allow for a superspreader event. Nothing encapsulates the money before lives approach of capitalism and college athletics more succintly.
You’ve been great. Enjoy this dog’s aversion to hair clips.