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As university athletes start earning money through product endorsements and marketing, Washington lawmakers consider restrictions

March 1, 2022 Updated Tue., March 1, 2022 at 7:48 a.m.

A jogger runs past the Legislative Building just before dusk on Dec. 21 at the Capitol in Olympia.  (Ted S. Warren/Associated Press)
A jogger runs past the Legislative Building just before dusk on Dec. 21 at the Capitol in Olympia. (Ted S. Warren/Associated Press)
By Albert James The Spokesman-Review

OLYMPIA – College athletes have been able to make money off of their celebrity for over six months. This session, the state Legislature is looking to formalize some rules relating to name, image and likeness activities for college athletes.

On Wednesday, a bill establishing regulations was passed out of a House committee.

Name, image and likeness – commonly referred to as “NIL” – is the ability of a person to profit off their persona. Actors appearing in car commercials, professional athletes appearing on cereal boxes and musicians attaching their names to fast food meals are all examples of people using their identity to make money.

College athletes were barred from engaging in name, image and likeness activities until a U.S. Supreme Court ruling last June opened the door for student athletes to make money off themselves. Some states had legislation ready to manage students marketing their character, but Washington was not one of them. Sen. David Frockt, D-Seattle, is sponsoring a bill that would establish rules statewide.

“One of the problems here is that the federal government is not enacting a standard of legislation for us to follow that would apply to everybody,” Frockt said at a House College and Workforce Development hearing on Feb. 16. “So states are acting on their own.”

Under Frockt’s bill, which already passed the Senate, colleges and athletic organizations would be prohibited from impeding on an athlete’s right to profit from their name, image and likeness. Groups of students could work together and be a part of a group that benefits from such deals. An athlete’s scholarship could not be affected, and athletes would need to report any agreements to their school, but those reports would be exempt from public disclosure.

Deals with athletes couldn’t be crafted to sway an athlete in playing at a certain school or playing a certain sport, according to the bill. Schools would be allowed to implement restrictions on activity that is illegal or negatively impacts the school’s reputation. School name, image and likeness policies and the reasoning behind them would need to be made available online.

Institutions would be allowed to help students understand policies, connect students with interested brands and organizations and provide general “good faith advising and evaluation” surrounding their involvement in marketing and advertising activity, according to the bill. But schools would not be allowed to pay athletes for their name, image and likeness work, assist a student in finding an agent or help an athlete collect money for deals.

Under the bill, a school or athlete could take an agent or outside brand or organization to court if the school or athlete is subject to adverse effects due to an agent or third party’s actions in violation of the law. The attorney general and Washington Student Achievement Council could assess a civil penalty of up to $50,000 against an agent or third party if they violate the rules.

College athletes already are able to make money through endorsement deals – like Gonzaga forward Drew Timme and his partnership with Northern Quest or former Washington State running back Max Borghi and his time as an “Arby’s RB” – although they do so following policies set by their school. Name, image and likeness policies for athletes differ by state and university if there is no statewide policy. That patchwork of state laws in the absence of a national standard, Frockt said, has created a “wild, wild West” of regulation.

Sherman Neal II, strategic initiatives coordinator for WSU athletics, said the university worked with the attorney general’s office to build policies from scratch when the NCAA’s rules changed. WSU has made things work, but Neal said different standards across the state on how schools can help their athletes and what actions are ethical or not creates an imbalance.

“We at least need to be able to know what we can do, and then adjust accordingly with our resources. Right now, that’s definitely an unknown,” Neal told The Spokesman-Review. “Every email that comes in, every athlete inquiry, we may be handling that differently than they do. This isn’t fair to the athlete and really to the program.”

Catherine Walker, Eastern Washington University’s associate athletic director for compliance, said the university adopted the NCAA’s vague name, image and likeness policies and has been cautious while helping their athletes navigate new territory. Enacting standards statewide, Walker said, would put the university “on the same playing field” as their Division I colleagues throughout the state.

“I go back to the very vague NIL policy,” Walker said. “There’s a lot of confusion still, like what is permissible and what is not permissible. The state bill kind of gives us those guardrails and there’s no guessing game.”

Both Neal and Walker said that the bill is a first step in navigating the ever-changing landscape. As marketing opportunities expand for athletes, the policies governing the system will need to evolve, they said.

Rep. Cyndy Jacobsen, R-Puyallup, said she supports the idea of ensuring student athletes have the right to make money off their performance.

Though she expressed concern about allowing the attorney general and the Washington Student Achievement Council to impose a civil penalty on bad actors. She questioned whether laws already in place against unfair and deceptive business practices “would apply here anyway,” making penalty action in the bill “superfluous.”

The bill will be sent to the full House for consideration.

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