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Texas A&M AD says school’s potentially ground-breaking NIL plan a blueprint for others to follow

On3 imageby:Andy Wittry02/24/23

AndyWittry

Texas A&M representatives provided advance notice to both the NCAA and SEC that there would be a potentially landscape-shifting name, image and likeness-related announcement last week, when the school’s official booster organization, the 12th Man Foundation, unveiled the creation of the 12th Man+ Fund.

But an NCAA spokeswoman told On3 the association didn’t review or approve any plans before the announcement.

Just one offseason removed from when message board rumors and aggregators turned A&M boosters into alleged deep-pocketed boogeymen, the 12th Man Foundation became the first independent fundraising arm of an athletic department to announce it will directly fundraise for and facilitate NIL deals for athletes.

“Why did the 12th Man Foundation do it now? I think it’s just a combination of kind of where the market is, right?” Texas A&M athletic director Ross Bjork told On3 in a Zoom interview Thursday. “I mean, everybody’s looking for validity. Everybody’s got donors who are interested in supporting NIL. … People were looking for, like, an official outlet that they could trust.”

In a statement to On3, NCAA associate director of communications Meghan Durham said, “Texas A&M notified the NCAA that an NIL-related announcement was upcoming. However, the NCAA did not review or approve any concept prior to the announcement.”

Will others follow A&M’s model? ‘I believe we’ll see it’

An affiliate agreement between A&M and the 12th Man Foundation will allow donors who contribute to the 12th Man+ Fund to receive priority points, which impact new or upgraded season-ticket selections and ticket access to games. Only an arrangement similar to the one between A&M and the Foundation could allow a third-party organization to provide benefits typically associated with an athletic department.

Thanks to partnerships between collectives and institutions’ multimedia rights-holders, like Learfield, universities such as BYU and LSU have named an official collective. The 12th Man Foundation’s new 12th Man+ Fund doesn’t technically bring an institution’s third-party NIL infrastructure in-house. But it’s now across the street.

“From everything I’ve read about it and from my understanding of it, it’s compliant with the NCAA rules and Texas state NIL law and A&M’s NIL policy,” Mit Winter, an attorney at the Kansas City-based law firm Kennyhertz Perry LLC, told On3 last week. “So I don’t think there’s a problem there. I think other people probably haven’t done it just because from an optics point of view, it can look – I don’t know if ‘bad’ is the right word but like it’s too entangled with the university, so that’s probably why other people haven’t done it yet.”

The SEC West now has two institutions with ties between an athletic department’s independent fundraising arm and their donors’ NIL infrastructure. The 12th Man Foundation’s model goes one step further than the collective ONEArkansas NIL, whose registered agent is listed as Razorback Foundation Executive Director and General Counsel Scott Varady. ONEArkansas NIL partners with Arkansas athletes, who promote nonprofit organizations in the state.

“I don’t know exactly the mechanics of it,” Bjork said of ONEArkansas NIL. “I don’t think it’s widely publicized, if you will. So it was kind of hard to get a lot of intel on that perspective as everybody was trying to analyze this.”

With the 12th Man+ Fund acting as an industry-wide trial balloon of sorts, other athletic departments, or even universities at large, that are supported by an independent fundraising organization could soon follow a similar path.

“I believe we’ll see it. Yes, I do,” Bjork said. “I heard from several colleagues last week, asking questions.”

Independence was the ‘one big, bright line’

Over the past few months, the 12th Man Foundation planned and, in conjunction with Texas A&M, vetted its new 12th Man+ Fund to ensure its stated permissibility and viability.

“Our role in the analysis was, ‘Does it follow the state law? Does it follow NCAA guidelines? Does it follow institutional policy? And do we truly believe that as an institution that the 12th Man Foundation is governed separately as a 501(c)(3) through all the documents and affiliation agreements?’” Bjork said. “You had a lot of attorneys at the university, obviously on the 12th Man Foundation side, analyze it from kind of those lenses. State law, NCAA, university, governance, and decided that the entity was safeguarded from any university oversight.

“They’re not doing NIL on our behalf. That’s a very, very important distinction and so everything just kind of aligned to create this structure.”

While some collectives – a label 12th Man Foundation President and CEO Travis Dabney deflected last week when answering a reporter’s question about the 12th Man+ Fund during a news conference – that have filed for 501(c)(3) status pay college athletes for promoting charities, Texas A&M athletes will receive compensation for promoting the 12th Man Foundation itself.

When asked what part of Texas A&M or the NCAA’s NIL policy or Texas’ state law required the most consideration regarding the formation of the 12th Man+ Fund, Bjork said the independence of the organization. Texas A&M’s news release described the 12th Man Foundation as independent “in both fact and appearance.”

“We didn’t tell them to do this,” Bjork said. “We’re not causing them to do this. It is truly an independent approach to the latest in college athletics, which is name, image, likeness. That was the biggest threshold aspect, the one big, bright line. Not on our behalf.”

As of Thursday, Bjork said, the 12th Man Foundation hadn’t yet contracted with any athletes.

‘There’s nothing to hide’

While Texas A&M notified the SEC and NCAA of an upcoming NIL-related announcement, neither provided an official stamp of approval. Bjork said the conference isn’t in a position to do so.

“Is there an NIL hotline at the NCAA?” Bjork said, smiling, when asked where an institution turns to at the NCAA if it has NIL-related compliance questions. “No, I don’t think they have that stuff. Look, I think our job is to make sure we have really, really great relationships with the NCAA office – whether that’s myself, whether that’s our compliance folks, whether it’s our deputy ADs or whether we go through the SEC office. There’s lots of avenues to basically get answers.”

What did Bjork tell colleagues who asked about the 12th Man+ Fund?

“Hey, look. There’s a lot of info on our website, the 12th Man website,” Bjork said, later adding, “It’s all out in the open. You know, there’s nothing to hide.”

The SEC hasn’t responded to a request for comment about whether Texas A&M or the 12th Man Foundation asked the conference for guidance or rules interpretations before last week’s announcement.

“We just gave the SEC the heads-up that this was coming, but they’re not in a position for approvals or anything like that to really resolve sort of the ‘yes or no’ answer,” Bjork said. “That’s just not the role that they can play, especially given the landscape right now around NIL.”

Bjork: Allegations didn’t change Texas A&M’s approach

Texas A&M received as much NIL-related scrutiny as any in the country last offseason. The Aggies’ 2022 football recruiting class was rated as the best in the recruiting rankings era, according to the On3 Consensus. Alabama coach Nick Saban alleged, “A&M bought every player on their team.” Texas A&M coach Jimbo Fisher held a fiery news conference in which he called out Saban. Texas A&M officials even asked the SEC to consider suspending Saban.

Did that offseason saga change A&M’s approach to NIL?

“No,” Bjork said, following about a four-second pause. “It’s kind of hard to answer because you can’t react to everything, whether it’s NIL or coaching rumors or whatever else. You can’t respond to everything. So I don’t know if it changed the way we were approaching it. I think what we tried to do is just have facts, right? And the great thing about Texas law that was created back in 2021 is the athletes, they have a requirement where they have to turn their contracts in and we’ve had public records requests around the total value of those contracts.

“What’s pretty amazing is when that number got reported from July 1, 2021 ’til I think it was the end of August of ’22 … it obviously wasn’t even close to $30 million. Again, I think that’s the problem, challenge, confusion around all of this – there isn’t transparency nor really should there be because these are students. They’re protected by federal privacy laws.”

Bjork told reporters last week that A&M athletes have made “almost $10 million” since July 2021. While not every state law or institutional policy requires the disclosure of NIL deals, stakeholders have estimated that a fraction of all NIL activities nationally are disclosed.

How much could A&M athletes make in the future? The 12th Man Foundation’s Dabney said last week the organization will consult with an accounting firm to establish fair-market value. The Foundation’s website says an athlete’s “marketability, following and ultimately their name, image and likeness will influence the level of engagement.”

“It’s true compensation for true value of the student-athlete’s name, image, likeness,” Bjork said. “This is probably as true of an NIL arrangement as you can get because the athlete has to fulfill something and the 12th Man Foundation will determine the value of that athlete and give them a stipend, essentially, accordingly to that value and how much they promote the 12th Man Foundation.”

Texas A&M’s representatives and fans cited transparency as an NIL-related defense during college football’s last offseason. Transparency now is seen as a form of empowerment as the A&M athletic department’s fundraising arm goes on the offensive this offseason.

Publicly and privately, administrators across the country are watching, if not planning, to see what happens next.

“I could see where others look at the 12th Man Foundation model, whether they have a structure now or they create one,” Bjork said. “We’ll see.”

On3’s Jeremy Crabtree contributed to this story.