New York’s New Name, Image, And Likeness Law Hardly Protects College Athletes

On November 21, New York Governor Kathy Hochul signed into law the New York Collegiate Athletic Participation Compensation Act,” which was once touted as a progressive piece of legislation. In its final form, the state law may do more to protect the interests of New York colleges than their elite athletes.

Kevin Parker (D-Brooklyn), one of the three sponsors of the bill, had originally proposed groundbreaking changes to the college sports economic system in New York, including a proposal that state colleges pay fifteen percent of revenues to their college athletes. However, not only was Parker’s original suggestion that colleges must pay their athletes excluded from final version of the bill, but the New York law even includes inverse language that colleges “shall not provide a prospective student-athlete with compensation in relation to the student-athlete’s name, image or likeness.” (Presumably, current college athletes fall within the category of “prospective”).

Two other sections of New York’s Collegiate Athlete Participation Compensation Act further limit New York college athletes’ rights as compared to prior to the act’s passing. One section requires college athletes seeking to endorse products to disclose their potential endorsement deals in advance of executing them—potentially creating delays and bottlenecks for athletes and their potential sponsors. The other section grants colleges veto power over prospective college-athlete endorsement deals for a number of different reasons, including a claim of conflict with team sponsorship deals.

This latter carveout is loosely written and thus theoretically could allow for a college to attempt to block an athlete endorsement deal with Pepsi if the college already has an exclusive contract with Coca-Cola that states that no athlete at the school may endorse a rival product. Or, a school with an exclusive Nike licensing deal might attempt to block an athlete from sponsoring Adidas or Reebok.

While the final section of the New York Collegiate Athletic Participation Compensation Act includes a potpourri of more progressive requirements (including emergency financial assistance for highest-need athletes, mental health counseling, and mandatory sex-discrimination training), these alternative benefits hardly make up for the financial limits on athlete endorsement deals that New York has now codified into law. And, it is hard to imagine that many New York State colleges, especially public colleges, do not already provide these benefits.

As such, it is somewhat disappointing that what began as one of the most progressive efforts by any state legislature to enhance the economic rights of college athletes ended up with the signing into law of a bill with college-friendly language and other half-baked compromises. While it is hard to imagine this was the original intent of Kevin Parker or any of the bill’s original sponsors, it indubitably represents a sign of the times.

____________

Marc Edelman ([email protected]) is a Professor of Law at Baruch College’s Zicklin School of Business, Sports Ethics Director of the Robert Zicklin Center on Corporate Integrity, and the founder of Edelman Law. He is the author of “A Short Treatise on Amateurism and Antitrust Law” and A Short Treatise on College-Athlete Name, Image and Likeness Rights.”