Collegiate Sports, Name Image Likeness, And The Second Amendment

(New York State Public High School Athletic Association via AP)

Recently I ran into a video by a content creator I know that goes by the name of “Average Gun Owner”. After chewing a little on the video he sent over, I reached out to him to learn a little more about what he was talking about. The subject is Name, Image, and Likeness (NIL) being used by college athletes for profit. This all came at the heels of a Supreme Court Case opinion upholding a lower court’s ruling, National Collegiate Athletic Association v. Alston et.al. The case dealt with the athletes to be able to profit from endorsements and at what level. The long convoluted history of this subject is outside of the scope of Bearing Arms so we won’t go too far down the rabbit hole. The intricacies of this are also way outside my expertise. What’s not outside of our scope though is talking about college rifle or other shooting sports related teams, and how it pertains to them. Where do you think this is going?

To bring you up to speed on the argument we have from the case opinion document:

Colleges and universities across the country have leveraged sports to bring in revenue, attract attention, boost enrollment, and raise money from alumni. That profitable enterprise relies on “amateur” student athletes who compete under horizontal restraints that restrict how the schools may compensate them for their play. The National Collegiate Athletic Association (NCAA) issues and enforces these rules, which restrict compensation for student-athletes in various ways. These rules depress compensation for at least some student-athletes below what a competitive market would yield.

The short story is the students won. The “now what” which proceeded this opinion includes rule creation at the individual colleges and universities as well as a number of states passing laws to regulate NIL compensation. Some of which I personally find funny, because it was regulations and rules that got the collegiate sports associations into this quagmire. My advice would be “tread lightly”.

The three biggest programs for collegiate athletics are: National Collegiate Athletic Association (NCAA), National Association of Intercollegiate Athletics (NAIA), and National Junior College Athletic Association (NJCAA). According to wikipedia, some of the sports include:

Among many other sports, the most-watched competitions are in college football and college basketball, though there are competitions in all the other sports. Those include baseball, softball, ice hockey, soccer, rugby union, volleyball, lacrosse, field hockey, cricket, handball, swimming and diving, track and field, golf, tennis, table tennis, rowing, and many others depending on the university.

Notably absent is the aforementioned rifle shooting/shotgun shooting as a sport. Rifle shooting is a Division I NCAA sport. Rifle shooting also happens to involve the exercise of a Constitutional right. As schools and states scramble to regulate NIL polices and laws, let’s take a look at small sections of verbiage on what activities are excluded.

The Arkansas Student Athlete Publicity Rights Act, originally House Bill (HB) 1671 was signed into law by Governor Asa Hutchinson on April 21, 2021 and allows student athletes to receive compensation for the commercial use of their publicity rights effective Jan. 1, 2022….

A student athlete participating in varsity intercollegiate athletics is prohibited from earning compensation as a result of the commercial use of the student athlete’s publicity rights in connection with any person or entity related to or associated with the development, promotion, production, distribution or retailing of:…

Weapons, including without limitation firearms and ammunition

The New Jersey Fair Play Act (NJ S971), approved by Governor Phil Murphy on Sept. 14, 2020 and applicable in the fifth academic year following enactment, allows collegiate student athletes to earn compensation for the use of their NIL….

Student athletes are prohibited from earning NIL-related compensation in connection with the following areas:…

Weapons, including firearms and ammunition

On June 14, 2021, Governor Greg Abbott signed Senate Bill (SB) 1385, Texas’ NIL bill, into law. The law took effect on July 1, 2021….

Student athletes may not enter into a contract for the use of their NIL if:…Compensation is provided:…

In exchange for an endorsement of: alcohol, tobacco products, e-cigarettes or any other type of nicotine delivery device, anabolic steroids, sports betting, casino gambling, a firearm that the student athlete cannot legally purchase or a sexually oriented business.

That’s just a quick survey of some of the states that have laws on the books regulating NIL related activities. Note the prohibition in these states for being compensated for promoting firearms. Where does this leave our NCAA rifle shooters? They’re being completely excluded from being able to profit from their sport. We can all agree it’d be highly unlikely that a sports drink manufacturer would endorse a rifle shooter, or better yet, a sneaker company. I could be wrong to make that assumption, but I’d imagine firearm and ammunition companies would be more prone to engage in NIL activities with a rifle shooter. Or a student that engages in a collegiate shotgun shooting team, of which there are some 50+ teams in the country. Pistol teams? Yeah they’re out there too.

Texas got included on the list because of “a firearm that the student athlete cannot legally purchase“. This would exclude students under the age of 18, as they would not be able to purchase a rifle or a shotgun. What about the three pistol shooting teams in Texas? Athletes under 21 would be excluded from any endorsements from a pistol company, no?

This is just the tip of the iceberg. The prejudice does not end there. There are even certain schools that make their own polices excluding those that engage in shooting sports from being able to use the tools of their sport to profit by:

University of Oklahoma (“OU”) student-athletes shall not enter into a name, image and likeness agreement involving a commercial product or service that generates public disrepute, embarrassment, scandal, ridicule, or otherwise negatively impacts the reputation or the moral or ethical standards of the OU Athletics Department or the University of Oklahoma as a whole. The restricted categories of commercial products or services include, but are not limited to:

Assault weapons and/or other related firearms
Banned substances pursuant to NCAA Bylaw and/or Policy
Bars and/or nightclubs
Cannabis-related enterprises (e.g. dispensaries, grow suppliers, seed companies, etc.)
Casinos, sports wagering, or other gambling services
Companies and/or services owned or operated by institutional staff members or their family members
Drug and/or alcohol paraphernalia
Performance-enhancing drugs pursuant to NCAA Bylaw and/or Policy
Pornography
Professional sports teams and/or organizations
Recreational drugs
Tobacco and/or tobacco alternatives pursuant to NCAA Bylaw and/or Policy

The entire policy list was included to show how much of a vice “Assault weapons and/or other related firearms” is. Do we compare a rifle or shotgun to say pornography? Drug and/or alcohol paraphernalia? Cannabis? Gambling? The University of Oklahoma is drawing a parallel between granddad’s rifle and hardcore pornography. There are plenty of other institutions out there that think in a similar manner.

Is this a Constitutional issue? You bet it is. First Amendment? We can argue a big yes to that. Second Amendment? Yeah. How about this creating a class system where some sports are more equal than others? How come there are no exclusions for baseball bats? The states that have laws on the books that already exclude the shooting sports, as well as the colleges, are now going to be putting their students to task with them having to file more lawsuits. The states that are in the process of writing laws that exclude firearms and ammunition from NIL related activities, hopefully they’ll get the memo before bill passage.

This is what’s going on. As some students gain the freedom to manage and profit by their own names, images, and likenesses, we’re left with the Second Amendment-related athletes being treated like second-class citizens. This is just another flare to go up to raise attention and awareness. Massive hat tip to “Average Gun Owner” for taking the time to chat with me about the issue and for creating the video on this topic. You can watch the video that brought this to light below: