I. Introduction
State legislation has varying opinions on college athletes’ publicity rights, also known as Name, Image, and Likeness (NIL) rights. Currently, the state of Mississippi is employing the most effective use of NIL state legislation. Furthering Justice Brandeis’ view of states as the laboratories of democracy, such states along with the NCAA are in a phase of analytical testing. This brief seeks to show that the state of Mississippi and its approach to NIL rights can help inform the federal push for a NIL bill.
II. History of the NCAA
In 1905, President Theodore Roosevelt, a longtime football fan, called together athletics leaders from some of the top football schools and urged them to clean up the game.[1] The NCAA was founded in 1906 to regulate the rules of college sport and protect young athletes.[2] After World War II, the NCAA adopted principles that covered financial aid, recruitment, and academic standards with the intention to ensure amateurism in college sports.[3] In June 2021, governance bodies adopted a uniform interim policy suspending NCAA NIL rules for all incoming and current college athletes in all sports.[4]
Over decades, the NCAA has become a sprawling enterprise.[5] The NCAA’s current broadcast contract for the March Madness basketball tournament is worth $1.1 billion annually.[6] The NCAA television deal for the Football Bowl Subdivision (FBS) conference’s College Football Playoff is worth approximately $470 million per year.[7] In 2017, the total revenue of the Southeastern Conference (SEC) exceeded $650 million, making more than $409 million from television contracts alone.[8] The president of the NCAA earns nearly $4 million per year.[9] Commissioners of the top conferences take home between $2 to $5 million. College athletic directors average more than $1 million annually.[10] Annual salaries for top Division I college football coaches’ approach $11 million, with some of their assistants making more than $2.5 million.[11] Prior to 2021, everyone involved in college athletics received generous compensation, except for the athletes themselves.
III. Evolution of NIL Rights
In 1984, the Supreme Court in NCAA v. Board of Regents discussed NCAA violations under 15 U. S. C. § 1.[12] Section one of the Sherman Act states, every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.[13] Although Board of Regents discussed the authority of NCAA policies and regulations in connection with television plans, the Supreme Court provided the guidelines for claims made against the NCAA in connection with the Sherman Act. The Supreme Court explained that the Sherman Act is intended to prohibit only unreasonable restraints of trade.[14] In addition, the Supreme Court provided that an unreasonable restraint of trade may be based either (1) on the nature or character of the contracts or (2) on surrounding circumstances giving rise to the inference or presumption that they were intended to restrain trade (also known as “the rule of reason”).[15]
In 2015, NIL violations by the NCAA under the Sherman Act were discussed by the Supreme Court in O’Bannon v. NCAA[16], when a former UCLA basketball star Ed O’Bannon filed a federal lawsuit against the NCAA over whether Division I men’s basketball and football players ought to be compensated for the commercial use of their NIL (in video games).[17] In 2019, Senator Chris Murphy released a report supporting the push in NIL rights, stating that college sports are an American tradition because of the college athletes, but these college athletes deserve more than our fanhood.[18] Senator Murphy argued for a system that guarantees a meaningful education as well as financial security.[19] Finally, Senator Murphy advocated for a system that respects college athletes’ contribution and dedication.[20]
Recently, in NCAA v. Alston, the Supreme Court discussed NCAA violations under section one of the Sherman Act in reference to the use of college athletes’ NIL rights. Using the rule of reason, the Supreme Court decided that NCAA restraints were stricter than necessary to achieve demonstrated procompetitive benefits and declared a violation of the Sherman Act.[21] The Supreme Court made clear that the decades-old comments about college sports and amateurism made in NCAA v. Board of Regents have no bearing on whether the NCAA’s current compensation rules are lawful.[22] Concurring, Justice Kavanaugh stated that the NCAA’s business model would be flatly illegal in almost any other industry in America.[23]
IV. Mississippi’s Approach to NIL
As of July 1, 2021, all NCAA athletes are able to profit from their NIL after the governing bodies from all three NCAA divisions voted to approve the interim NIL policy. College athletes still have to adhere to NIL rules in their specific states but can profit from sponsorships and endorsements.[24] On April 16, 2021, Mississippi Governor Tate Reeves signed into law 2020 Bill Text MS S.B. 2313 (2021) (“Bill 2313”), allowing college athletes in the state of Mississippi to receive compensation for the use of their NIL.[25] Mississippi’s NIL law is rather strict in comparison to other states’ NIL laws.[26]
Mississippi universities are allowed to place limitations on when their college athletes can participate in endorsement-related activities, have sole control over what athletes wear during a sponsored event, and require their athletes to notify their university of any NIL transaction within three days of the agreement coming into effect.[27] Bill 2313 speaks to the necessity of a bill passed at the Federal level.[28] What made Mississippi unique was the direct mention of boosters in particular.[29] Mississippi took a step further in 2022 with the passage of 2020 Bill Text MS S.B. 2690 (2022) (“Bill 2690”), allowing schools in the state to be involved in athletes’ NIL deal conversations.[30]
The University of Mississippi (Ole Miss) has enhanced their partnership with INFLCR, a sports social media and education platform, to create Next Level.[31] Next Level is a holistic platform on which Ole Miss college athletes can create content and boost their following.[32] Bill 2690 provides that individuals or entities may “collectively” license publicity rights in exchange for compensation to student athletes.[33] Thus, The Grove Collective was founded, ensuring that NIL is done right by the law and right by Ole Miss student athletes.[34]
V. The University of Mississippi and The Grove Collective
The University of Mississippi aids student-athletes through their Next Level Exchange, which exists to equip Ole Miss college athletes with the resources to build their personal brand, expand their professional network, and navigate NIL opportunities.[35] Next Level provides (1) streamline payments and reporting, (2) consolidated tax documentation, (3) no transaction fees, and (4) no deal facilitation.[36]
College athletes may not enter into a contract for use of their NIL that uses the licensed marks or logos of the University unless the University has provided written permission in advance of signing the NIL contract.[37] In compliance with Bill 2690, which provides that individuals or entities may collectively license publicity rights, The Grove Collective was formed. The Grove Collective markets college athletes’ businesses, provides contracts for use, assists with accounting and taxation, and fulfills the compliance disclosure required by Ole Miss.[38]
Executive of The Grove Collective, Walker Jones, stated that the relationship between Ole Miss and The Grove Collective is a team effort, and the Vice Chancellor for Intercollegiate Athletics, Ole Miss coaches, Ole Miss administration, and the university added validity.[39] The Grove Collective has recently expanded into soccer, volleyball, and track and field, in addition to baseball, football, and men’s and women’s basketball.[40] Walker Jones stated that the collective is trying to branch out and assist as many of the athletes as they can.[41]
VI. Key Factors of The Grove Collective: William Liston and Walker Jones
The Grove Collective was founded at the end of 2021 by attorneys William Liston and Mac McDonald.[42] Liston was involved in helping write the Mississippi state legislation of NIL and had a good understanding of what was required and what the state would allow.[43] Liston raised his hand to form a third-party collective to provide an NIL platform for Ole Miss college athletes per Mississippi statute.[44] The goal was to create an entity that seeks to leverage and capitalize on the commercial value that college athletes create at Ole Miss and utilize that value to build a program that serves the best interests of Ole Miss college athletes.[45]
Liston emphasizes three portions of Mississippi’s NIL bill: (1) the importance of amending Bill 2313 to include the term “collective,” (2) the provision against NCAA penalization, so long as college athletes are following Mississippi statute, and (3) the provision which grants collectives to cooperate with their respective universities. Liston has exhausted these points of emphasis in the Mississippi statute; however, he continues to advocate for protection from the transfer portal. There are many potential remedies for the harm caused by the transfer portal, including buyout clauses or guaranteed contracts to protect collectives and universities. NIL and transfer portal issues will continue to affect one another.
The executive of The Grove Collective, Walker Jones, has played a crucial role in its recent development. Jones stated that to make money from NIL college athletes need opportunities.[46] Jones explains that The Grove Collective works separately but in tandem with Ole Miss, providing college athletes with exposure to opportunities and counseling on deals.[47] In comparison to other states and universities, Jones feels blessed to have a very advantageous state statute that gives The Grove Collective the ability to have a lot of creativity and a lot of coordination with the Ole Miss.[48] As an alumni and former player of the Ole Miss football team, Jones is in the best position to consider all approaches and issues that college athletes may encounter with NIL opportunities.
VII. Conclusion
As one of the many states to adopt an NIL bill, the state of Mississippi has continued to prove why it created the most effective NIL bill today. The University of Mississippi and The Grove Collective have played a major role in contributing to this outcome. To help inform the federal push for an NIL bill, legislation should consider the approach used by the state of Mississippi in forming the most effective NIL bill.
Nolan Forthaus is the third-place winner of the 2023 Conduct Detrimental NIL Writing Competition. He is currently a 2L at Saint Louis University School of Law. He graduated with a Bachelor's Degree in Economics from The University of Mississippi in 2022.
References:
[1] NCAA, History, https://www.ncaa.org/sports/2021/5/4/history.aspx, (2023).
[2] Id.
[3] Id.
[4] Id.
[5] NCAA v. Alston, 141 S. Ct. 2141 (2021).
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Nat'l Collegiate Athletic Ass'n v. Bd. of Regents, 468 U.S. 85, 104 S. Ct. 2948 (1984).
[13] 15 U. S. C. § 1.
[14] Nat'l Collegiate Athletic Ass'n v. Bd. of Regents, 468 U.S. 85 (1984).
[15] Id. at 103.
[16] O'Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015).
[17] Michael McCann, In denying O'Bannon case, Supreme Court leaves future of amateurism in limbo, https://www.si.com/college/2016/10/03/ed-obannon-ncaa-lawsuit-supreme-court, (Oct. 3, 2016).
[18] Chris Murphy, How everyone is getting rich off college sports – except the players, https://www.murphy.senate.gov/imo/media/doc/NCAA%20Report_FINAL.pdf, (Mar. 27, 2019).
[19] Id. at 14.
[20] Id. at 14.
[21] NCAA v. Alston, 141 S. Ct. 2141 (2021).
[22] NCAA v. Alston, 141 S. Ct. 2141 (2021) (Kavanaugh, J., concurring).
[23] Id.
[24] Id.
[25] Icon Source, State of Mississippi NIL Laws: What College Athletes and Businesses Need to Know,
https://iconsource.com/mississippi-nil-laws/, (Feb. 2, 2022).
[26] Id.
[27] Id.
[28] Id.
[29] Braly Keller, NIL Incoming: Comparing State Laws and Proposed Legislation, https://biz.opendorse.com/blog/comparing-state-nil-laws-proposed-legislation/, (May 25, 2023).
[30] Id.
[31] Id.
[32] Id.
[33] The Grove Collective, About The Grove Collective, https://thegrove collective.com/about/, (2023).
[34] Id.
[35] Ole Miss Athletics Foundation, Next Level, https://givetoathletics.com/nil-home-page/, (2023).
[36] Id.
[37] Ole Miss Athletics Foundation, Frequently Asked Questions for Businesses, https://givetoathletics.com/nil-faqs/, (2023).
[38] The Grove Collective, About The Grove Collective, https://thegrove collective.com/about/, (2023).
[39] Donna Sprabery, Exciting things on the horizon: Walker Jones discusses the progress of The Grove Collective, new opportunities coming for fans, https://therebelwalk.com/2022/12/exciting-things-on-the-horizon-walker-jones-discusses-the-progress-of-the-grove-collective-new-opportunities-coming-for-fans/, (Dec. 12, 2022).
[40] Id.
[41] Id.
[42] David Johnson, The Grove Collective executive director Walker Jones answers questions about major Ole Miss NIL, https://247sports.com/college/ole-miss/article/the-grove-collective-executive-director-walker-jones-answers-questions-about-major-ole-miss-nil-initiative-194791552/, (Oct. 5, 2022).
[43] Id.
[44] Id.
[45] Parrish Alford, Ole Miss group announces business to aid NIL opportunities, https://currently.att.yahoo.com/news/ole-miss-group-announces-business-133200984.html, (Jan. 23, 2022).
[46] Donna Sprabery, A Visit with Walker Jones: NIL and The Grove Collective’s Journey to Streamline the Process, https://therebelwalk.com/2022/10/a-visit-with-walker-jones-nil-and-the-grove-collectives-journey-to-streamline-the-process/, (Oct. 20, 2022).
[47] Id.
[48] Id.
