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A little over six months have passed since the NCAA adopted its interim name, image, and likeness (NIL) policy, removing the restrictions that previously prevented college athletes from earning money through endorsements, licensing, and their own commercial activities. While many states decided to enact their own laws providing such rights to college athletes, which ultimately led to the NCAA determining that all college athletes across the country should be able to earn money based on their fame, others were less anxious to pass bills on the subject matter.

However, even with the NCAA currently (albeit still on an interim basis) removing much of the restrictions placed on college athletes, states are still considering the creation of their own statutes to ensure that college athletes are never again shackled by the NCAA. One such proposal, introduced in Maine, actually seeks to go a step further than that.

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On January 5, 2022, Senator Louis Luchini and Representative Michael Brennan introduced legislation in Maine titled, “An Act Regarding the Use of a Student Athlete’s Name, Image, Likeness or Autograph.” At its core, it would prevent colleges and universities in the State of Maine from adopting or enforcing a policy that prohibits or prevents college athletes from earning compensation for the use of their NIL and obtaining professional representation with regard to negotiating NIL contracts.

Yet, it goes a step further in seeking to make a determination that college athletes are not employees of the colleges or universities that they attend based on their participation in the intercollegiate athletic programs and may not receive any benefits accruing to a college or university employee.

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This has become a hot issue since the National Labor Relation Board’s (NLRB) general counsel issued a memorandum clearly stating that her position is that many college athletes are employees and that they have been misclassified as mere student-athletes, opening the door to college athletes attempting to unionize and collectively bargain under the National Labor Relations Act (NLRA). While NLRB General Counsel Jennifer A. Abruzzo said she intends to take the legal position that college athletes are employees under the NLRA in future investigations and litigation, it remains to be seen whether she and/or the NLRB intervenes in a situation where a legislature may codify that college athletes cannot be labeled as employees, as has been presented for debate in Maine.

The timing is also interesting given that a judge recently invited an appellate review on an issue concerning whether NCAA Division I athletes can be employees for purposes of the Fair Labor Standards Act.

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NCAA, NIL Rights, Sports