NIL in 2022: What's the Verdict?

Todd S. Shumaker

Author: Todd S. Shumaker

POST DATE: 2.16.22
Ccha  Sports Law

What’s the verdict on NIL? It turns out the jury’s still deliberating. Or maybe the decision’s on appeal. Either way, it doesn’t look like we’re any closer to firm guidance on this issue than we were last summer. And, quite honestly, the path we’re traveling now of collectives and revamped state laws is so far from where we thought we might be when the NCAA implemented its interim policy on NIL that a quick reset might be in order.

NIL: A Brief History

Starting as far back as 2019, the NCAA Board of Governors began considering how to address NIL rules. Along the way, a working group was developed to solicit feedback and offer suggestions, no fewer than four proposals outlining an NIL framework in the NCAA bylaws were developed, and Congress engaged in discussion on the potential for national legislation on the issue. Then the Alston decision was issued on June 21, 2021, and the Supreme Court raised concerns about antitrust issues for the NCAA. Less than two weeks later on June 30, the long-awaited NCAA policy on NIL was issued. Only it didn’t look anything like what most of college sports had anticipated.

The policy essentially boiled down to: if your state has a law on NIL, follow it; if it doesn’t, you can still engage in NIL activities without violating NCAA rules. Guardrails around this activity prevented NIL from being used as a recruiting inducement or from being provided as pay-for-play. Regulations around use of trademarks and facilities, the institution’s role in managing its athletes’ NIL, and appropriate NIL activities, though, were shelved. And they remain there today.

CCHA feb 2022 NIL BLOG 1

Initial NIL Efforts

Nature abhors a vacuum, and so does college sports it turns out. Athletes, coaches, and institutions alike have taken the skeleton of the interim NIL policy and creatively crafted their own skins to give life to NIL opportunities. Institutions have partnered with platforms like Altius Sports Partners, COMPASS, Game Plan, and INFLCR that connect athletes to various NIL, education, and reporting opportunities. High profile athletes have either taken it upon themselves to market their NIL on their own or signed individually with internationally recognized talent agencies such as CAA or Wasserman to connect them with lucrative opportunities.

Most recently, athletes have embraced group licensing opportunities, whether it’s on the heels – or boots – of a national championship in the case of the Florida State women’s soccer team, or the history of a brand like Notre Dame football with Ikonick. Not to be outdone, college alumni and boosters have increasingly stepped into the NIL space by forming collectives to pool their resources and collectively – so to speak – generate NIL opportunities for athletes at their schools. One of the most recent efforts was even spearheaded by former NCAA executive Oliver Luck at West Virginia.

Perhaps no individual athlete – or athletes in this case – exemplify the growth and reach of NIL opportunities like the Cavinder twins at Fresno State. Haley and Hanna made history at midnight on July 1, 2021, when they signed the first ever NIL deal for college athletes with Boost Mobile. Fast forward eight months, and the NIL deals for these entrepreneurs have encompassed the WWE and, most recently, co-founding Baseline Team with a pair of Fresno State alumni.

Legislative Changes

Oddly enough, many of the states that introduced legislation to pave the way for robust NIL dialogue found themselves disadvantaged when the NCAA’s interim policy was implemented. In an effort to get out in front of NCAA rules, their own laws had actually imposed more restrictive requirements on NIL opportunities for their athletes than did the interim policy and, consequently, states who had never enacted NIL regulations at all. Most recently, legislatures in states like Alabama and Florida, who passed NIL laws in 2021, have already revised their policies to ensure the schools in their states can remain competitive with schools in other states.

As the tri-force of a new transfer process, NIL, and a full recruiting cycle converge, there’s still plenty of terraforming to be done on this landscape by the time any federal legislation is enacted on NIL or, more arbitrarily, the interim policy celebrates its first birthday in June. Just expect that the next big thing from the next big athlete or coach will set the pace for what’s to come in NIL land.

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