there was a good discussion yesterday on SXM ESPNU radio re NIL. The guy (I believe his name was Devaney) was talking to the commentators, who clearly seem surprised by what he explained. NIL is not about any time there is $$$ and players. NIL is about an INDIVIDUAL athlete's name, image and likeness. He said the best examples of NIL was happening in D2 and D3 where an athlete sets up their own company to use their brand to market something (i.e. an example of a female lacrosse player in ivy league). NIL is not where an organization offers anyone who wants to transfer or attend a given school $$$$. the commentators were conjoining that with NIL. He also said there were NCAA rules that prevent using NIL $$ to recruit or pay for play/performance. He also said the schools can have NO involvement with any organization that is paying players for their NIL. He did say the NCAA was not able to police this because they did not have the staff or way to prove the violations. One of the commentators (Ben Harsock?) said didn't the Supreme Court decision make the NCAA rules obsolete, and this guy said the Supreme Court decision did not preclude the NCAA from having the current regulations. The SCOTUS decision was actually very narrow. That surprised the commentators, who then said well you "can't put the toothpaste back in the tube", and this guy said that you may see some of the paste go back in the tube. It will depend on what the Presidents want to see happen re the regulations. The schools own the brand of their teams and have full right to regulate student conduct and academic performance. A third party company cannot pay a player to attend a school and have the school automatically admit them.
ESPNU Discussion on NIL - what it is and is not
- Thread starter blion72
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These collectives are not dumb enough to do (or get caught for) what you are suggesting. These contracts are written by some very smart folks who know exactly how to bend without breaking. University presidents are an option, but good luck with that. My guess is you’ll see a new league of top programs before any current NIl stuff is reworked (lest the Supreme Court widen their opinion - which is what will likely happen).
LOL. Which department of the NCAA does this guy work for?
NIL is turning into nothing more than a legalized slush fund to entice (bribe) athletes to come to a particular school.
I assume he knows that - I assumed he was trying to differentiate where there were few or no athletic scholarship players.
This expert doesn’t know crap. A few states, most recently Tennessee has passed a law allowing collectives to work directly with schools including the recruiting process. Work is being done to change PAs laws regarding Nil which are the most restrictive in the US. I have been working with nil very closely over the last couple of months. Nil is not pay to play. It is name image likeness. Unfortunately the enforcement is nonexistent at this point. Penn State is still behind but working very hard to close the gap but we will not be paying to play.
You are correct the enforcement is non-existent to date, which is why the situation seems to be misunderstood by those in the media. If you are covering a sport that gets into these complexities, you are going to report and react to what you see is happening, not what is theoretically or in this case legally the issue. Absolutely, NIL is about the INDIVIDUAL's personal name, image and likeness, which is the domain of trademark law. The SCOTUS case merely stopped the NCAA from blocking an individual from taking $$$ for their NIL. In other words, the player is free to generate NIL $$$, and the NCAA is free to regulate schools on how they recruit, maintain eligible players, etc.
I asked one of our company lawyers who deals with our complex contract disputes and here is what he said.
As for the states, some (approx 20) are clearly writing legislation that actually interferes or over rides the NCAA regulations with its member schools. However, the NCAA relationship is a contract and would be governed as a federal matter. He suggested that the NCAA contract would likely have federal preemption over any state law. The states would not be able to argue 3rd party beneficiary as it is the individuals and their NIL trademarks that are impacted, assuming you could even make that argument. The NCAA could easily argue that they are not regulating the INDIVIDUAL player's NIL rights by regulating the member schools. So the NCAA would likely win against a state, if it chose to fight - which the NCAA may just do a turtle. Our lawyer also said that this was exactly why it was so hard to fight and get standing in the JoePa case against the NCAA. Even PA couldn't find a way to fight them at the state legislature. He also suggested the the concept of a "collective" crowd funded entity is very likely to come into the argument with the NCAA, as the NIL would have to be for some value (other than attending and playing for a given school) that is being used by this "company". Of course this all comes down to the NCAA taking action, and to do that it needs the blessing of the Presidents who govern them, which is how they punished Penn State. Would the NCAA get the blessing to go after Univ of Texas, and put them on multi-year probation? Everyone knows that offering a player $X to attend is NOT NIL and is in violation of the NCAA Regs.
I think most have a general understanding about what NIL is intended to be, and many fans don't have an issue with players marketing themselves and getting paid for that. Reality is that NIL has opened the doors to pay for play and tampering in recruiting because a loophole that can't be enforced has been opened.