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Background

The movement to allow student-athletes to profit from their name, image, and likeness (NIL) continues to sweep across the nation, reshaping amateur athletics from coast to coast. What began as a collegiate phenomenon has steadily made its way into high school athletics, with nearly every state now allowing young athletes to benefit from their NIL in some form.[1]

This week, a federal judge in the Eastern District of Michigan dismissed a lawsuit brought by four former University of Michigan football players who claimed they had been deprived of profits derived from use of their name, image, and likeness (NIL). Judge Terrence G. Berg granted the motion to dismiss filed by defendants NCAA, the Big Ten Conference, and the Big Ten Network, holding that the statute of limitations had run on claims of all four former players.

A federal judge in Columbus, OH, has dismissed a name, image, and likeness (NIL) lawsuit filed last October by former star Ohio State (OSU) quarterback Terrelle Pryor. Pryor sued OSU, the Big Ten, the NCAA, and others, seeking damages for the allegedly unauthorized use of his NIL. The complaint accused the defendants of violating antitrust laws by barring student-athletes from profiting on the commercial use of their NIL.

On July 16, the U.S. Court of Appeals for the Seventh Circuit, in a 2-1 decision, overturned a preliminary injunction that would have granted University of Wisconsin cornerback Nyzier Fourqurean a fifth year of eligibility. The NCAA’s “Five-Year Rule” limits student-athletes to four seasons of competition within a five-year period. Fourqurean played four seasons: two at Grand Valley State University and two at the University of Wisconsin. The University of Wisconsin requested a waiver of the Five-Year Rule from the NCAA, citing circumstances that reduced Fourqurean’s playing time in his first season.

A week after the approval of the $2.5 billion class action settlement of House v. NCAA (settlement), the NCAA and defendant conferences (i.e., Atlantic Coast Conference, Big Ten Conference, Big 12 Conference, Pac-12 Conference, and Southeastern Conference) released a question and answer document (Q&A Guidance) providing guidance on the settlement’s implementation. This post covers insights from some of the Q&A Guidance for Division I membership to consider on the eve of radical collegiate athletic change.

A three-page memo distributed to schools provides further clarity regarding Deloitte’s role as the approved clearinghouse for name, image, and likeness (NIL) deals, as outlined in the House settlement and guidance documents. Deloitte’s NIL clearinghouse and review platform will be known as “NIL Go.” We briefly addressed the role of the NIL clearinghouse in a previous blog post.

On May 7, the parties in House v. NCAA submitted supplemental briefs in response to U.S. District Judge Claudia Wilken’s April 23 order[1] requiring both parties to address her concerns over the issue of roster limits. These briefs (i) revised the terms of the proposed settlement agreement and (ii) detailed how the revisions would ensure “that members of the Injunctive Relief Settlement Class will not be harmed by the immediate implementation of the roster limits provisions.”[2]

On Monday, a U.S. district court judge in the Southern District of New York dismissed a lawsuit brought by former Kansas basketball player Mario Chalmers and 15 other former college basketball players. The plaintiffs all played college basketball before June 15, 2016 — the proposed start date for the House settlement pending approval in the Northern District of California — meaning they would not be beneficiaries of that settlement. Accordingly, the former players sued the NCAA and the conferences in which their respective institutions competed, alleging that the defendants violated U.S. antitrust law by forcing the players to agree to amateurism rules and forgo compensation for use of their NIL while the NCAA and defendant conferences simultaneously generated revenue from use of the players’ NIL.

On April 25, U.S. District Judge Zahid N. Quraishi ordered the NCAA not to enforce its Five-Year Rule against Rutgers University cornerback Jett Elad.[1] The impact of name, image, and likeness (NIL) agreements on the new world of Division I sports underpinned two key findings in the opinion: (1) the NCAA’s junior college rule (JUCO Rule) is subject to federal antitrust laws; and, (2) Elad had a likelihood of success on the merits because Division I student-athletes have a greater ability to benefit from NIL agreements compared to non-Division I athletes.