Not All College Athletes can Participate in NIL

The inaugural year of the name, image, and likeness (“NIL”) era has been driven by football, particularly at the football bowl subdivision (“FBS”) level. It was no surprise when Opendorse published its findings on the first year of NIL that football was the top sport for most NIL activities (29.3%), followed by baseball (8.0%) and men’s basketball (7.6%). [i]

So, it would be a safe assumption that if there was only one school in a state that sponsored FBS football, baseball, and men’s basketball that such a school would dominate the NIL landscape in that area, right? Wrong.

In New York and Colorado, the only school that, respectively, sponsors all three of these sports at the Division I level have combined for zero NIL deals throughout all their athletic programs. Those schools are the United States Military Academy (West Point, New York) and the United States Air Force Academy (Colorado Springs, Colorado). This may be puzzling since it would make sense for America’s finest and brightest to be some of the most marketable athletes in the country. Army head football coach Jeff Monken would agree.

“I think the academy would be a good place for those people who would want to spend [NIL] money,” said Monken when asked about NIL. “They’ve got not only a great platform—we’re on national TV about every week—we have great young men who are playing at a high level and winning a lot of football games. They’re going to professionally go on and do great things. They can have a person that goes from being a football player who can represent a product or whatever it is to later as a professional person as well.”[ii]

So, why is there a lack of NIL activity at Army and Air Force? As I’m sure you’ve guessed by now, it has to do with the fact that they are federal service academies.

Federal law prohibits all athletes at the five “federal service academies” (Army, Navy, Air Force, Coast Guard, and Merchant Marine Academy)[1] from exercising their right to publicity since they are employees of the federal government due to the government paying for their tuition, housing and fees. [iii]

The specific statute in play is 5 CFR § 2635.702 (Use of public office for private gain), which states: “An employee shall not use his public office for his own private gain, for the endorsement of any product, service or enterprise, or for the private gain of friends, relatives, or persons with whom the employee is affiliated in a nongovernmental capacity. . .”[iv] This includes using one’s NIL as a cadet or midshipman for financial gain.

Interestingly enough, while athletes at the academies are designated as employees, this is the exact opposite of what the NCAA and many universities are currently pushing for. In the active federal case Johnson v. NCAA, the NCAA is arguing that college athletes are not employees of the schools they attend under the Fair Labor Standards Act (FLSA). Classification as FLSA employees would entitle college athletes to minimum wage and related benefits, similar to their classmates participating in work-study programs. [v]

Will NIL hurt athletics programs in these service academies? Well, it certainly is not going to help. There is no shortage of wealthy alums from these institutions, including Bill Foley (owner of the NHL’s Las Vegas Golden Knights and Army graduate), capable of providing NIL opportunities, and there are many marketable moments for academy athletes such as the nationally televised Army-Navy football game.

But, at the same time, people are attending prestigious military institutions like Army, Navy, and Air Force for more than just playing sports. As Monken noted, “We may never have the opportunity to take advantage of [NIL], and that’s OK. Our guys are here for a higher calling. It’s not about individual name, image, and likeness. It’s about playing this sport for them. But that doesn’t mean it wouldn’t be nice to earn something from name, image, and likeness. They don’t have a desire to do that. It’s not part of who we are as an institution. I commend our guys. They know that. They have a chance to check out if they want to, but they stay. It speaks to the type of people they are and the commitment they’ve made to this institution to be leaders in the Army. They have a brotherhood.”[vi]

Perhaps the Pentagon will issue a policy in the future permitting athletes at the federal service academies to monetize their NILs. It was only a few years ago that Defense Secretary Mark Esper issued a policy allowing college athletes graduating from the service academies to delay their service requirements to play professional sports, so perhaps the door has been opened to create more leniency for star athletes at the academies. [vii] However, there may not be an appetite for engaging in NIL opportunities among the cadets at the United States Military Academy or the United States Air Force Academy, or the midshipmen at the United States Naval Academy, considering the grueling nature of the schooling and training at those institutions.

Either way, with the Black Knights, Midshipmen, and Falcons’ respective 2022-23 football seasons about to kick off this Saturday, we can all look forward to watching arguably the last “traditional” college athletes partake in the sports we love.

Daniel S. Greene is an attorney based in Syracuse, New York. He has been published by The

Sports Lawyers Journal and New York State Bar Association’s Entertainment, Arts and Sports

Law Journal, and has guest lectured on various sports law topics at Syracuse University’s

College of Law and School of Sport Management, as well as at Cazenovia College.

[i] “N1L: One Year of Name, Image, and Likeness”, Opendorse, https://opendorse.com/wp-content/uploads/2022/07/N1L_Full_063022_3.pdf, page 7.

[ii] “Army West Point’s All-American commitments ineligible for NIL”, Shanahan Report, https://tomshanahan.report/2022/06/army-west-pointss-all-americans-ineligible-for-nil/.

[iii] “Senior military colleges” (e.g., The Citadel, Texas A&M, VMI) can partake in NIL.

[iv] 5 CFR § 2635.702 found at https://www.law.cornell.edu/cfr/text/5/2635.702.

[v] “NCAA Ushers Dog Groomers, Strippers Into Athlete Employee Case, Sportico, https://www.sportico.com/law/analysis/2022/ncaa-argues-against-college-athletes-as-employees-1234686299/.

[vi] See endnote ii.

[vii] “Military academy athletes can get waivers to delay service, go pro”, ESPN, https://www.espn.com/college-sports/story/_/id/28081051/military-academy-athletes-get-waivers-delay-service-go-pro.