How the NCAA Dropped the Ball on NIL

BY: CAITLIN PARISE

I have come to realize that there is still a lot of confusion lingering behind what NIL means and its business in the world of college sports. To best understand the what of NIL, we must also understand the why. Below discusses what NIL is, the policy concerns fronted by the NCAA regarding NIL, and what concerns are now at issue following the emergence of compensation for NIL.

Sponsorship NOT Scholarship:

During conversation with a fellow sports fan, the question was raised; “So college athletes getting paid on top their free education, right?”

On the surface, the headline ‘College Athletes Will Get Paid to Play’ might come off as a bit ambiguous and offer the idea that schools will be paying athletes to participate in collegiate sports. This is not the case [6]. The money that pays for athletic scholarships comes from the school, its donors, etc. The money that athletes are now able to receive will come from third party businesses in the form of sponsorship deals – the same kind of sponsorships professional athletes are able to accept. This is where Name, Image, and Likeness enters the conversation.

Name, Image, and Likeness (or NIL) is essentially an athlete’s personal brand, whether that means a video game creator designing characters with the athlete’s features or utilizing the athlete’s personal following on social media to promote brands. The athlete can receive money in exchange for allowing the use of their name, images, and general likeness [6]. In short, NIL in college sports marks the return of personal autonomy and identity back to college athletes in the U.S.

The questions continued; “Doesn’t this ability to take sponsorships for a sport put the average student at a disadvantage just because they do not participate in athletics?”

The answer is no, in fact NIL compensation does not put the average student at a disadvantage but rather grants the average student athlete the same opportunities as any of his non-athletic peers. I propose the following scenario:

At University X, a student on an athletic scholarship for D1 football had just won the SEC championship. He decides to sell his championship ring on eBay to make a little money. After all, it was his ring, why shouldn’t he make a little money? The ring sold for $$2,000.

At the same university, a student receiving an academic scholarship towards her Art Major has just won a huge award for a painting. She decides to sell her award-winning piece on eBay to make a little money. After all, it was her art, why shouldn’t she make a little money? The piece sold for $2,000.

The art student was contacted and commissioned by for countless future pieces and plans to continue to make sales throughout the following colligate years.

The student athlete was forced to reimburse the school the cost to recover the rings, and due to NCAA restrictions, now faces ineligibility or temporary suspension.

The student athletes name is Fred Gibson, a wide receiver at the University of Georgia who played during the 2003 SEC Championship. Jerseys his last name across the back were sold in the school’s apparel store and yet Gibson never saw a dime of the profit [1].

This was all due to the NCAA and their restrictions on of amateurism.

NCAA Policy Concerns & NIL

The NCAA based the majority of its purpose of existence around the idea that they protected athletes from being treated as professionals. As noted in the Supreme Court decision of NCAA v. Aston, it is well established that the NCAA’s only remaining defense as to why they wanted to keep the restrictions over NIL compensation in place was the idea that its rules ‘preserve’ amateurism [2]. To be fair, this idea to restrict abilities of young people in the interest of preservation is not new to national policy.

Stepping back from the lens of sports law, take a moment to consider other laws pertaining to the preservation of youth and innocence. The way our laws have been written reflects, as matter of public policy, a collective concern to protect young people. This is seen across both civil and criminal laws such as the minimum age to contract is 18 years old, and even shortly after turning 18 a court may still allow a young person to terminate an otherwise binding contract simply due to their age. Drinking laws require a minimum of the participant to be 21 years old, sexual consent a minimum of 17 years old, driving a minimum of 16 years old [3]. It is undoubtable that we recognize the late high school through college years as those during which the youth of our country should slowly gain more and more personal responsibility, while remaining under the guidance of governing bodies.

The NCAA’s guidelines seemingly spoke to this same public policy of truly caring about protecting youth, the young athletes for which they set rules of guidance.

But, based on the actions of the NCAA just prior to the July 1st decision, I call B.S.

On September 30th 2019, California passes legislation (originally slotted to go into effect in 2023 but was eventually set for July 1st 2021,) to prohibit schools from punishing college athletes who accept endorsements. The NCAA referred to the legislation as an "existential threat" to college amateur sports [4].

On June 30th 2020, the night before the state laws go into effect, the NCAA passed new laws allowing such compensation from endorsements to athletes for their NIL [4].This is to say that less than a year later, the NCAA itself adopted the “existential threat” it had previously prohibited and bashed.

For decades they pushed to convince the nation that they were the supreme in deciding what was right for college athletes to protect the veil of amateurism. Yet, in a single year, they have decided to abandon their protection of these athletes, exposing young players to whatever the world of government and professionalism might have in store. Either this was one of the largest moves of negligence, a breach by the NCAA of their self-proclaimed duty to serve and protect an entire body of young athletes now susceptible to the harms of professionalism, or the curtain has just been pulled back. Behind it, antitrust law violations. Maybe a mix of the two.

To be clear, this is not to say that these young athletes are not capable of make decisions for themselves. The point here is that if the NCAA hoped to remain at all relevant or important to the world of college sports, they should not have committed this irresponsible move to abandon the youth they so desperately wanted to protect. It seems more likely that this ‘duty to protect’ was never actually a genuine concern.

What is clear is that the apparent need for the NCAA is fading.

What Now?

When the NIL decision went into effect, only a handful of states had laws in place, and all others were given to complete free range to ‘wing it’ or wait for federal laws [4]. As coined on Conduct Detriment’s podcast, the world of college sports is about to become “The Wild-Wild West” [5]. ANY company can reach out to ANY athlete with ANY offer. Either young college students must learn to spontaneously attain the ability to read a contract like a seasoned lawyer, or every company must have the very best interest of all young athletes in mind without any alternative agenda – neither of which are very likely. In a perfect situation, there would have been an educational resource made available to athletes to provide them with enough information about the business and legal issues that come along with signing your personal brand to another company BEFORE this July 1st date, but this was not the case.

During the interim while state and federal legislatures fine tune their hurried laws [6], there must be a collective response to where the NCAA has failed. Parents and coaches must educate themselves to this new business and legal landscape to continue to be resources of guidance for their young athletes. Schools must offer educational classes on media, branding, and financial responsibility to athletes and any young entrepreneurs who are subject to this youth sponsorship advertisement. Finally, it is the responsibility of the athlete to investigate, in detail, exactly what it is they are signing their name to and if it speaks to the athlete as an individual. As a law student, it wasn’t until my second year during a professional responsibility class that I was finally asked to think about my own ethical code and put it in writing. It is unfair to assume every college athlete has been given the chance to flesh out their own codes to follow when conducting their legal and contractual business. The idea of pairing with an organization is exciting, but the athlete should remember to seek opportunities that speaks to their personal code as a student, as an athlete, and as a person – not just the most lucrative deals.

For an organization to claim with such conviction they wanted to protect athletes, it’s insane how in the entire NCAA D1 manual there is not a single section of cautionary advice regarding how to eventually make a transition to professional sports [7].

Sources:

1. https://www.heraldtribune.com/news/20030516/ringgate-nine-bulldogs-ineligible-for-selling-championship-rings

2. https://www.supremecourt.gov/opinions/20pdf/20-512_gfbh.pdf

3. https://ypdcrime.com/penal.law/

4. https://www.espn.com/college-sports/story/_/id/31086019/everything-need-know-ncaa-nil-debate

5. https://open.spotify.com/episode/25YQRGNKobbsk7vYo2QQOA?si=zNUBjmDmQDSmlM_3Ads2Vw&dl_branch=1

6. https://www.espn.com/college-sports/story/_/id/31740112/rule-changes-mean-athletes-schools-more

7. https://www.ncaapublications.com/productdownloads/D116JAN.pdf