New Oklahoma NIL bill would prohibit student-athletes from being employees

A new name, image and likeness bill has been introduced in the Oklahoma State Senate that would make sure student-athletes are not classified as employees of their school.

The NIL bill was introduced by Oklahoma State Senator Greg McCortney. McCortney, a Republican from Ada, Oklahoma, is also the majority leader in the chamber. The bill will have its first reading on Feb. 6.

The bill would revise Oklahoma’s current NIL legislation that strictly prohibits student-athletes from engaging in activities using school logos, involving sports wagering or banned substances, or with supporting entities of the university.

Yet, NIL experts said, among the proposed changes, the inclusion of the language stating that student-athletes can not be classified as employees of their school is eye-opening.

“I think the employment status of college athletes may be the biggest issue in this landscape over the next two years,” said Dan Greene, a NIL expert and associate attorney at Newman & Lickstein in Syracuse, N.Y.

“This isn’t the first time this type of language has been proposed for a NIL bill, for example, in Florida and Maine. But we haven’t seen a bill enacted with this provision. I’ll be curious if this clause gains any traction in the Sooner State.”

McCortney didn’t seem too surprised his bill generated attention.

“Interesting to see this bill gain national attention so quickly,” McCortney said in a tweet on Monday. “It’s almost like NIL is a big deal or something.”

What else is in new Oklahoma NIL bill?

Other notable parts of McCortney’s bill in Oklahoma include:

• Removes requirements that NIL compensation is “commensurate with market value.”
• Removal of language from the original Oklahoma NIL legislation that limits the impact collectives can have on NIL deals with student-athletes. Greene believes this section is aimed at empowering collectives similar to other revised NIL laws across the country.
• It’s also notable the bill has language that says college collegiate athletic associations, the NCAA for example, can’t prohibit schools from identifying, facilitating, enabling and supporting NIL opportunities for its student-athletes. This adjustment is a nod to the recent NCAA clarification that opened the door for schools, athletic department officials and coaches to officially endorse booster-run collectives and further support NIL activities.
• The bill says schools can adopt reasonable restrictions on NIL activities that interfere with team activities/school operations.
• Additionally, the bill also says athletic associations can’t prohibit schools from partnering with third parties to identify, enable and support NIL activities on their behalf.

Student-athlete employment a complex issue

The new state bill in Oklahoma and others across the country comes amidst the NCAA pleading with the United States Congress to enact legislation regulating NIL while protecting college athletics’ governing body from state laws. The NCAA has not made a single move to penalize an athletic program or university for recruiting violations since the inception of NIL in July 2021.

Many legal experts believe the battle for employment rights is the next NIL frontier in the coming months.

But collective bargaining and employment rights are a lot more complicated than many realize, both from a college sports enterprise and student-athlete perspective.

In a recent LEAD1 Association virtual panel, Jonathan Israel of Foley & Lardner LLP and Michael Phillips of McGuireWoods LLP agreed college athletes do not necessarily fit “neatly” within the definition of “employee” or “independent contractor, and employment and labor laws vary from state to state.”

In addition, according to some NIL experts, Title IX could certainly be implicated under revenue sharing or employment status. Legal analysts like Israel and Phillips say any attempted circumvention of Title IX in federal or state legislative proposals could be subject to legal challenges.

The LEAD1 panelists also said that adding employment rights could make academic success more untenable, further complicating student-athletes already loaded plates with athletics, academics and NIL.