On the heels of the preliminary injunction awarded in Tennessee/Virginia v, NCAA, the Virginia legislature has amended its Name, Image, Likeness (NIL) statute. The legislature appears to be taking advantage of the NCAA’s waning authority over NIL usage and compensation for college athletes in an effort to provide Virginia athletes and colleges a competitive advantage. The old NIL statute contained many of the same restrictions as the NCAA guidance that was in place at that time. The amended statute removes many of those restrictions, attempts to restrict outside interference and investigations from governing bodies like the NCAA, and—most surprisingly—opens the door for increased involvement of colleges, including direct payment to student-athletes for use of their NIL.

Here is a brief summary of the amended standards:

• “No athletic association, athletic conference, or organization with authority over intercollegiate athletics shall”:
  • Entertain a complaint, investigate, or take adverse action against or penalize an institution or student-athlete for activity permitted under the new statute.
  • This would prohibit the NCAA or any other conference from investigating Virginia institutions or punishing athletes for activity permitted under this statute that is not permitted elsewhere in the NCAA regulations.
  • “Prevent an institution from “compensating a student athlete for the use of his name, image, or likeness”
  • “Prevent an institution, its supporting foundations, or an entity acting on its behalf from identifying, creating, negotiating, facilitating, supporting, engaging with, assisting with, or otherwise enabling NIL opportunities for student-athletes”
• Collegiate institutions must now develop policies and procedures that govern the compensation of a student-athlete for the use of their NIL. These policies my not hinder or prohibit outside NIL opportunities.
• Institutions may provide “assets, resources, or benefits, as incentives” to individuals and companies that support NIL opportunities for their student athletes.

The amended statute will be effective, July 1, 2024.

Of note the following states have taken similar legislative action: Arkansas, Mississippi, Missouri, Louisiana, New York, Oklahoma, Texas, however none appear to go as far as Virginia’s efforts to equip universities and disarm the NCAA. Read alongside the Tennessee litigation and preliminary injunction, it is clear that Virginia is preparing for a future with less NCAA control, and Virginia institutions are now poised to take advantage of the moment and create a competitive advantage in this new market.

With new legislative developments, comes a new need for guidance. No matter what the future holds as the NIL market develops, student athletes, endorsing entities, and collegiate institutions should all seek counsel to protect their investments and ensure that their NIL agreements can withstand the test of time, no matter what standard ultimately prevails.