Beginning in July 2021, collegiate student-athletes (“SAs”) across the country gained the ability to commercialize and be compensated for their name, image, and likeness (“NIL”) while remaining compliant with National Collegiate Athletic Association (“NCAA”) policies and bylaws notwithstanding their focus on the student-athletes’ amateur status. Growing in its governance through a mish-mash of NCAA policies predicated upon the bylaws, institutional/conference policies, and state laws, the world of student-athlete compensation has evolved swiftly; unmistakably changing the landscape of college athletics forever. And it is not over yet. More change driven by the NCAA, the judicial system, conference realignment, and the SAs themselves is sure to press toward intense changes in how we understand collegiate sports and the student-athlete.

The following summarizes the current status of NIL and the rules regulating it. Please be aware that the rules governing the NIL space frequently change and this page reflects NIL history and guidance as of the time of its publishing. Thus, one should refer to the information below only as a guide and not as the NIL rule in its most modern state.

I. NCAA’s Interim NIL Policy 

On June 30, 2021, the NCAA approved its “Interim NIL Policy”. See also NCAA Article on adoption of Interim Policy. Since, the Interim Policy has served as the basic framework, upon which additional NIL guidance has been mounted. The rather sparse, half-page directive set as its baseline, an acknowledgement that NCAA SAs may engage in NIL activities consistent with the law of the state in which the student’s school is located. However, in doing so, the NCAA was clear to highlight prohibitions against the use of NIL to compensate SAs for their athletic participation or achievement (“pay-for-play”) and as a means to entice matriculation to a particular institution (“recruiting inducement”). Indeed, the Interim Policy and its attendant Q&A made the following key pronouncements:

• SAs who attend a university in a state with an active NIL law must comply with that law, in addition to any university and conference policies. Students who attend school in a state without a state NIL law need only comply with university and conference policies.
• NIL opportunities may not be used as a recruiting inducement as a substitute for pay-for-play;
• SAs may use professional service providers such as agents and attorneys for representation in exploring NIL activities/opportunities;
• SAs should report NIL activities consistent with state law or school and conference requirements;
• Schools and conferences can adopt their own policies to build upon the framework provided in the Interim Policy.

II. NCAA Adjustments to the Interim Policy 

A. Third-Party Involvement and Status as a “Booster”

On May 9, 2022, the NCAA returned to its Interim NIL Policy with an additional guidance document entitled NCAA Interim Name, Image and Likeness Policy Guidance Regarding Third Party Involvement (“Third Party Guidance”). Most notably, the Third-Party Guidance document recognized the rise of third-party business entities (otherwise, “collectives”) operating as an aggregate of boosters and their buying power to create pooled revenue to fund NIL opportunities for SAs. Critical to that guidance was the following statement defining third party collectives as “boosters” under the NCAA bylaws:

“It appears that the overall mission of many, if not all, of the above-referenced third-party entities is to promote and support a specific NCAA institution by making available NIL opportunities to prospective student-athletes (PSA) and student-athletes (SAs) of a particular institution, thereby triggering the definition of a booster.” (emphasis added)

By defining collectives in this manner, the NCAA pulled forward its rules related to the involvement of boosters in recruiting activities, applying them to the most common and certainly most lucrative NIL structures. The Third Party Guidance on NIL, read alongside the existing NCAA booster regulation, served to prohibit collectives from engaging in recruiting activities, including recruiting conversations on behalf of a school, or providing benefits to prospective student athletes (“PSAs”).

The rather restrictive guidance stated in specific:

• Recruiting conversations between an individual or entity that has triggered booster status and a PSA are not permissible;
• Booster/NIL entities may not communicate with a PSA, PSA’s family, or other affiliated with the PSA for a recruiting purpose or to encourage the PSA’s enrollment at a particular institution;
• An NIL agreement between a PSA or SA and a booster/NIL may not be premised upon initial or continuing enrollment at a particular institution;
• Institutional coaches and staff may not organize, facilitate or arrange, directly or indirectly, a meeting between a booster/NIL entity and a PSA;
• Boosters/NIL entities may not engage in recruiting activities, including recruiting conversations, on behalf of a school.
  
  In October of 2022 the NCAA gave additional clarity and guidance on the Interim Policy.

What was most interesting about the NCAA’s additional NIL guidance regarding collectives and the Interim Policy is what they did not include. Namely, the Third Party Guidance appeared to permit conversations between institutional staff and NIL entities—presumably to, at the least, educate and/or help ensure compliance with state law and NCAA rules. Further, by not speaking to the issue at all, the Third Party Guidance seemed to permit an institutions facilitation, coordination and/or arrangement of meetings between a current student-athlete (distinct from PSAs) and an NIL entity, so long as the engagement otherwise complied with NCAA rules and state law.

Lastly, stepping toward the notion of establishing broad SA support and protection, the NCAA provided the following guidance related to the Booster/NIL entity – SA relationship:

• An NIL agreement between a SA and a booster/NIL entity may not be guaranteed or promised contingent on initial or continuing enrollment at a particular institution.
• NIL agreements must be based on an independent, case-by-case analysis of the value that each athlete brings to an NIL agreement as opposed to providing compensation or incentives for enrollment decisions (e.g., signing a letter of intent or transferring), athletic performance (e.g., points scored, minutes played, winning a contest), achievement (e.g., starting position, award winner), or membership on a team.

In crafting the Third Party Guidance, the NCAA clearly kept an eye on its most essential bylaws and the central tenants of the Interim Policy. Indeed, the Third Party Guidance reiterated the following bylaws in specific:

• Bylaw 11.1.3 — Athletics department staff members are prohibited from representing an enrolled student-athlete or PSA in marketing their athletics ability or reputation.
• Bylaw 13.10 — Before a PSA signs a National Letter of Intent or written offer of admission and/or financial aid or before the school receives a financial deposit, a school may comment publicly only to the extent of confirming its recruitment of the PSA.
• Bylaw 13.1.2.1 — Boosters (and thus institutionally-aligned NIL entities/collectives) may not engage in recruiting activities, including recruiting conversations, on behalf of a school.
• Bylaw 13.02.14 — Recruiting is defined as “any solicitation of a PSA or a PSA’s family members by an institutional staff member or by a booster [(and thus institutionally-aligned NIL entity/collective)] for the purpose of securing the PSA’s enrollment and ultimate participation in the institution’s intercollegiate athletics program.”
• Bylaw 13.2.1 — Boosters (and thus institutionally-aligned NIL entities/collectives) may not be involved in making arrangements for or giving or offering to give any financial aid or other benefits to a PSA. Receipt of a benefit by a PSA is not a violation if the same benefit is generally available to the institution’s prospective students.
• Bylaws 12.1.2, 12.1.2.1.4.1, and 12.1.2.1.5 — No pay-for-play, whether for performance or on an incentive basis.
• NCAA Constitution 2.1.2 and 2.8.1, and Bylaw 13.01.2 — Institutions are held responsible for any impermissible recruiting activities by representatives of athletics interests (presumably including institutionally-aligned NIL entities/collectives).

B. Transparency Rules

In early January 2024, the NCAA took another step in the direction of student protections, this time aiming at increased transparency. In particular, the NCAA passed four elements:

1. A voluntary forum and aggregated list for NIL service provides (agents, financial advisors, etc.) to register;
2. Identification of an NCAA goal to work with institutions to educate and standardize NIL contract terms and practice;
3. Identification of an NCAA goal to develop comprehensive education and resources to SAs on policies, rules and best practices related to NIL; and
4. An NIL disclosure requirement by the SA to the institution for an agreement exceeding a $600 value.

The last of these was given additional form through specific amendment to NCAA Bylaw 22.2 “Disclosure” months later in April 2024. The following will take effective on August 1, 2024: This amendment stated 1) Institutions must have promulgate rules and procedures for disclosure of SA NIL; 2) SAs must disclose NIL with value greater than $600; 3) Institutions may provide assistance and services to an SA who timely complies with the disclosure requirements maintained by the SAs institution; and 4) an SA who does not comply with the institutional disclosure requirements shall not receive such assistance.

C. Institutional Involvement

Relatedly, and at the same time as the amendment to Bylaw 22.2, the NCAA amended Bylaw 22.1, permitting an institution to provide itself or contract with a third-party for the provision of “assistance and services (e.g. identify specific name, image, and likeness opportunities, facilitate deals between student-athletes and third parties) to an SA,” provided that:

1. the institution is not (directly or indirectly) providing the NIL compensation; 
2. the SA retains independence over the NIL agreement; and
3. the SA is not required to accept institutional services/assistance.

Primary among these amendments is permission for the institutions to facilitate NIL deals between an SA and a third-party. This appears to give broad opportunity for institutions to begin acting as a conduit between SA’s and collectives/boosters if not to begin pulling the activities of a collective into the institution itself.

D. Suspension of NCAA’s Interim Rule

In early 2024, the State of Tennessee and the Commonwealth of Virginia sued the NCAA alleging that many of the NCAA’s Interim Rule restrictions illegally “restrain[ed] and surpress[ed] competition.” See State of Tennessee and Commonwealth of Virginia v. NCAA 3:23-cv-00033 (E.D. Tenn. 2024). In particular, the suit targeted the Interim Policy’s prohibition against NIL Booster/Collective engagement and inducement activities on behalf of an institution and sought a preliminary injunction to prevent the rule’s enforcement.

On February 23, 2024, the federal court for the Eastern District of Tennessee granted the preliminary injunction and enjoined enforcement of the NCAA’s Interim Policy. The courts ruling stated: the NCAA is “restrained and enjoined from enforcing the NCAA Interim NIL Policy, the NCAA Bylaws, or any other authority to the extent such authority prohibits student athletes from negotiating compensation for NIL with any third-party entity, including but not limited to boosters or a collective of boosters . . .”

With this, the NCAA’s restrictions on NIL were substantially curtailed as they relate to third-party actors and the ability for a third party to induce a PSA or transferring SA to select an institution with full knowledge of their NIL worth. The court spoke decisively, stating that without participating in a free market, the collegiate SA cannot truly understand the value of their NIL. Thus, PSAs weighing their options for future enrollment and SAs testing the transfer portal, may use their NIL potential as negotiating leverage to identify the best deal and prospect for matriculation. Notwithstanding the NCAA’s continued interest in maintaining “amateurism” through collegiate athletics, to preclude a PSA/SA from participating in a market economy, the court reasoned, “harmed” the PSA/SA.

Due to the injunction, Third-Parties gained broad latitude to engage in NIL discussions during recruitment of PSAs and transferring SAs on behalf of particular institutions. It is difficult to see how upon a full consideration of the merits, the federal court will reverse this position.

III. Oregon’s NIL Law

As of June 1, 2024, a slight majority of US states continue to maintain NIL laws. See Opendorse NIL legislation tracker. However, some states have repealed previously passed legislation, viewing even their own state-based constraints as a hindrance to collegiate athletics and SAs, while others have stayed the course, modifying already passed laws through successive amendments. In either case, it is clear that just as colleges, universities, student athletes, collectives and the NCAA continue to grapple with the uncertain and frequently changing NIL landscape, so too are the leaders in state government.

Oregon’s history with NIL legislation began as many had. On June 30, 2021, Oregon’s original NIL bill, Senate Bill 5 (“SB 5”), into law. Since, SB5 has been amended twice – first on July 1, 2022, through Senate Bill 1505 (“SB 1505”) and more recently on March 6, 2024, through House Bill 4119 (“HB 4119”). In particular, the last of these amendments, HB4119, expanded the scope and protections found within the state law, adding with a quirk or wording particular to Oregon’s NIL law, included “athletic reputation” to NIL items for which an SA can be compensated (“NIL[ar]”).

HB4119 also expanded liability protection for the institutions in certain circumstances, and even insulated the institution from NCAA NIL oversight in many cases. Of course, the last of these – the insulation from NCAA oversight – creates potential conflict between Oregon institutions and the NCAA. To be sure, such conflict will not arise until several preceding actions occur (an alleged NIL violation and an act by the NCAA to demonstrate oversight).

But it should be noted that in the event of an attempt at such oversight, Oregon institutions may push back strongly based upon local law.

One should read Oregon’s law, as decidedly “pro-student,” “pro-NIL,” and “pro-institution.” Hallmarks of Oregon’s law are as follows:

Institutions may not:

• Compensate an SA for their NIL[AR].
• prohibit, prevent or restrict a SA from exercising their student’s rights (identified in the law as “the rights of a student enrolled in a post-secondary institution of education to earn compensation for use of the student’s name, image, [or] likeness or athletic reputation and to contract with and retain professional representation of an athlete agent.).
• penalize or retaliate against an SA for exercising their student’s rights; or 
• prohibit an SA from participating in an intercollegiate sport for exercising the student’s rights.

Student Athletes may:

• Enter into a contract with an entity other than the institution, that provides compensation for the use of the SA’s “name, image [or] likeness or athletic reputation.
• Make authorized use of institutional logos, marks and facilities;
• Pursue NIL deals without restriction based on the type or category, product, or service at the heart of the NIL agreement;
• Pursue NIL deals that conflict with institutional contracts, so long as the student-athlete does not perform NIL activities during official team activities.

Persons or entities that produce a university team jersey, video, game, or trading card for profit to make a royalty payment to each student-athlete whose name, image, or likeness is used in the creation of such a product.

Institutions may permit the creation of clinics, studios, labs or other programs created by the institutions for NIL educational, training, or support purposes.

The NCAA and/or an athletic conference may not do the following in response to an SA exercising their NIL[ar]:

• Prohibit an SA from participating in college sports;
• Accept a complaint about the NIL[ar];
• Take any adverse action against the institution or SA as a result of a violation or alleged violation of the NCAA or conference rules;
• Authorize, cause or allow any institution to take prohibited actions under the law.

The institution or its employees may not be held liable for any damages to an SA’s NIL[ar] due to decisions or actions made by the intuition or employee within the normal course.

NIL[ar] compensation may be made conditional upon the SAs attendance at a particular institution.

IV. The Future of NIL

One thing is certain: the way NIL operates today within collegiate athletics is not how it will operate tomorrow. Change is afoot and the experience of the PSA/SA as a commercial force move and morph alongside. Related settlements to ongoing and highly consequential litigation between plaintiff SAs and the NCAA foretell a new environment in which increased resources are more commonly made available to athletes institution-wide. Indeed, the anticipated settlement of the House litigation and what it may mean for collegiate athletes is present and pending, though it is not clear what the ultimate effect will be on NIL.

Please continue to reference this page as it will be updated as changes in the NIL landscape continue.

- Carson Gabriel Campbell, Associate General Counsel
*special thanks to University of Oregon Law Student and OGC Intern, Dallin Snyder [JD candidate 2025]

Disclaimer: Materials presented are for general informational purposes only and do not constitute legal advice. An attorney should be consulted regarding the specific facts and circumstances associated with any legal matter. No warranties or representations are made as to the accuracy of any information presented here or at any of the websites to which a link is provided, and the inclusion of a link or reference is not intended to be or imply an endorsement.