March NIL Recap

The sports marketing industry will soon undergo the single most dramatic change in its history, when college athletes are finally granted the right to monetize their Name, Image and Likeness. The mission of Student Athlete NIL is to help brands seize this opportunity and capture the attention of student-athletes, identify the ones that best personify their values, and then develop value-based partnerships with those individuals to mutually reach their goals. Working hand-in-hand, we can finally democratize college athletics.
Once a month, Student Athlete NIL will provide a recap on news and happenings in the NIL space.
Legislation & Rules Changes


The Maryland House of Delegates passed NIL-related HB0125. The bill and its cross-file, SB0439, are also known as the Jordan McNair Safe and Fair Play Act which “aims to protect student athletes from tragedies like McNair’s death, and cases of sexual abuse as seen with the Michigan State University gymnastics team.” From the Associated Press, “the bill passed the House Appropriations Committee unanimously with amendments that specify the scope of name, image and likeness and would only add health and safety protocols that aren’t currently utilized by institutions within the University System of Maryland.” (link)
USA Today’s Steve Berkowitz: “California state Senate Judiciary Committee office says the panel approved by 11-0 margin a bill that would move up effective date of state’s college-athlete NIL law to Jan. 1, 2022, and potentially earlier. Bill now has one more committee stop before it would go to the floor.” (link)
The newly-introduced NIL bill in Kansas was advanced by House members, passed by a vote of 95-29, and has been introduced and received in the Senate. (link)
The Athletic’s Seth Emerson: “The Georgia state House of Representatives this week passed legislation, sponsored by four Republicans and one Democrat, that would allow college athletes to receive compensation for their name, image and likeness. Bill now moves on to the Senate” (link – tweet, link – full bill)
Oregon State Senators Peter Courtney and James Manning Jr. are introducing a bill that would require schools in their state to allow college athlete NIL deals starting July 1, according to ESPN’s Dan Murphy, who notes the bill includes a provision through which student-athletes would get a slice of royalties from any merchandising deal their team takes part in while they are in school. (link)
Add the North Carolina Senate to the list of lawmaking bodies considering a NIL bill after SB 324 was introduced on Thursday. Senator Wiley Nickel (D-Cary): “This is not only the just and equitable thing to do, but it also keeps North Carolina universities on equal footing with other states like California in competing for top talent for our athletics programs.” (link – article, link – full bill draft)
Alston Case


65 law, business, economics and sports management professors from Harvard, NYU, UC Berkeley, Stanford, Duke and dozens more have filed an amicus brief on behalf of the plaintiffs in the Alston case. Economist Andy Schwarz: “I really love the clarity of this amicus brief, explaining how the NCAA’s view of the world contrasts with an antitrust framework: ‘Markets, Not Committees of Competitors, Decide Which Products Succeed.” (linklink); More support for Alston comes from an unlikely source as former NCAA EVP Mark Lewis headlines a group of six former NCAA officials who have filed an amicus brief in support of the plaintiffs. The other five each held various enforcement roles with the NCAA. In the brief, Lewis, et al. argue that the NCAA’s compensation does not preserve consumer demand. Sportico’s Daniel Libit notes this “brief marks a complete reversal of Lewis’ testimony in the O’Bannon case. When asked about the concept of amateurism during that trial seven years ago, Lewis said, ‘I think at its heart, it is what college sports is.’ He went on to argue that, of the 117M people who tuned into the NCAA men’s basketball tournament that year, ‘the fact that these are not professionals is a very real part of why they watch the tournament.’” (link)
Per USA Today’s Steve Berkowitz: “U.S. Supreme Court has approved Justice Department’s request to participate in oral argument in the Alston v. NCAA case on behalf of the athlete plaintiffs.” (link); The NCAA has filed its final reply in the Alston case, in which it argues it does not seek antitrust exemption or immunity and the Ninth Circuit’s analysis was flawed. Sportico’s Michael McCann: “The NCAA hopes that the Court will establish (or re-establish, depending on broadly how one interprets Board of Regents) deference to the NCAA’s administration of amateurism. If it does, athletes and their attorneys would be less inclined to expend the money and resources to challenge the NCAA in court. If it doesn’t? Then the NCAA will need to reimagine amateurism so that it comports with the ordinary requirements of federal antitrust law.” NCAA on District Judge Claudia Wilken: “For 12 years and running, a single district judge has entertained successive challenges to the NCAA’s amateurism rules . . . [and created] her newly invented conception of amateurism, a conception that has no basis in reality and that erodes the distinct character of NCAA sports.” Much more. (link – analysis, link – Full brief)
#NotNCAAProperty


Student-athletes from 15 teams participating in the tourney go public with their call for progress as part of the #NotNCAAProperty movement alongside the NCPA. The group is pushing for full NIL rights by July 1, a meeting with NCAA President Mark Emmert, meetings with state & federal lawmakers, plus members of President Biden’s cabinet in order to secure “physical, academic and financial protections,” as well as a “Supreme Court ruling in support of plaintiff/college athletes” in the Alston case. (link)
NCAA President Mark Emmert in a letter to the NCPA says he will meet with the student-athletes behind the #NotNCAAProperty movement after the NCAA Tournament. (link); The student-athletes behind the movement expressed disappointment in Emmert’s response, writing: “From our perspective, it’s difficult to imagine any higher priority you may have at this time than addressing concerns that are at the core of state and federal college athletes’ rights legislation, an upcoming U.S. Supreme Court ruling on college athletes’ economic freedoms and the NCAA’s ongoing discriminatory treatment of female basketball players in its tournament. Can you please explain what you will be doing over the next two weeks that is more important than addressing these matters? In addition, we are disappointed with your apparent attempt to narrow the participation of this meeting to only three of us. To be clear, we are requesting a meeting with you that will also include other men’s and women’s basketball players as well as NCPA Executive Director Ramogia Huma so that we have someone present who is an athlete advocate with expertise in these areas.” (link)
Deals


Stony Brook becomes the the first joint, department-wide partner to launch with both Teamworks & INFLCR platforms. Seawolves AD Shawn Heilbron: “Between the communication tools from Teamworks and the NIL platform from INFLCR, our goal is to create an environment that supports our student-athletes in everything that they do. There are so many practical uses for these technologies in our department, and we’re excited to roll up our sleeves and get to work taking Stony Brook athletics to the next level.” (link)
UMBC is partnering with SAIL to educate students about anticipated changes to NIL rules. (link)
Boise State and INFLCR have agreed to a multi-year, department-wide partnership to assist student-athletes with building their personal brands as NIL legislation approaches. (linkBoise State is also partnering with TeamAltemus to provide NIL education to student-athletes. Broncos AD Jeremiah Dickey: “Having announced our partnership with INFLCR this past week, which will help student-athletes focus on building their brand, it was equally as important to assure they have the financial literacy to navigate not just NIL legislation, but also their post-collegiate careers. I’m elated our student-athletes will be able to draw from the expertise of TeamAltemus.” (link)
NIL opportunity and disclosure management software Athliance announces it is one month into a pilot program with Kansas, Arizona, Pittsburgh and Georgetown to help their compliance departments better navigate the complexities and challenges of NIL legislation. (link)
SBJ’s Michael Smith reports South Carolina has inked a one-year NIL education deal with Altius. Gamecocks Executive Associate AD/COO Charles Bloom: “This arrangement gives us the opportunity to be well-prepared, no matter what NIL looks like. Getting out in front of this space and being ready for whatever form NIL takes when it does get adopted will help our student athletes take advantage of their opportunities.” (link)
Business & Data


Opendorse launched “Ready NIL Masterclass,” an exclusive add-on to Opendorse Ready, to provide student-athletes with live lessons from leaders and brands in the larger NIL ecosystem. (link)
INFLCR announces the launch of Brand Strategy, an “ongoing video content series available through the INFLCR mobile app for student-athletes to access custom educational content about brand-building, social media strategy, storytelling, and more.” Atlanta Dream co-owner Renee Montgomery will help launch the app by sharing a variety of brand-building strategies from her personal experiences with student-athletes ahead of NIL. (link)
LEAD1 recently surveyed more than 100 FBS ADs on the future of college sports in light of recent college sports-related bills introduced by state and federal lawmakers. The survey asked which of two scenarios would be preferred five years from now: a “Professional/Commercial Model” or “Higher Education Model.” The Professional/Commercial Model included student-athletes being treated as employees with full NIL rights, as well as rights to collectively bargain, workers’ compensation, and other employment rights. Under this model, there would also be strong Title IX compliance, and possible revenue sharing with basketball and football student-athletes. The Higher Education Model included conditional antitrust protection by Congress to “allow the NCAA and conferences to negotiate and carry out policies predicated on significantly lowering compensation, buyouts, and the facilities arms race. This model would also include a greater investment in Olympic and non-revenue sports, expanded health, safety, and scholarship protections, full NIL rights, as well as strong Title IX compliance, but no collective bargaining or other employment rights.” Nearly 96% voted for the Higher Education Model. LEAD1 CEO Tom McMillen: “What this survey demonstrates is our schools’ willingness to reduce spending and create additional opportunities for student-athletes if given the proper tools by lawmakers. Clearly, our athletics directors would rather see college sports de-professionalized rather than fully professionalized.” (link)
Commentary


NCAA President Mark Emmert on NIL’s timeline, “My anniversary is June 24. And every year my wife and I take a vacation right around June 24. And we have canceled that vacation.” Emmert tells the AP’s Ralph Russo he’s still hopeful a national solution is in place before FB season starts as NCAA Chief Legal Officer Donald Remy says of the Department of Justice’s involvement in the Alston case, “We’re looking forward to trying to get (DOJ) to better understand what our rules are and to learn better what their concerns are, to figure out what the path to move forward should be.” More Emmert: “…we believe … that everything we’re doing is perfectly appropriate with the laws of the United States. That there’s nothing in this that’s inappropriate. And indeed, it’s something that is overdue.” (link)
Quite a read given NIL’s pending impact as former Portland men’s soccer student-athlete Noah Beck explains his meteoric rise in TikTok popularity: “After I worked out and trained, I just made videos. I posted around three or four a day. It’s not hard at all. People are like, ‘three or four, that’s a lot,’ but it’s 15-second videos, so it’s not a hard thing.” Beck, who now has over 25M followers and 1B likes, has since left the Pilots program to pursue a social media career and has joined the TikTok influencer collective Sway House. Beck explains his profile really began to rise after the pandemic forced him to return home. “You can only train for so long [though], so I was like, “What else can I do during this time? I might as well just start cranking out videos. … It became a hobby of mine. My followers kept going up. … Back when I had 50,000 followers, [Sway House member] Blake Gray DM’d me on Instagram and was basically like, “I see a lot of potential in you.” At the time he had three million followers on Instagram, [and] a good amount on TikTok. I was like, ‘Woah, this is pretty cool.’ He was like a celebrity.” Beck goes on to acknowledge there’s no guarantee a social media career will be feasible long-term, noting: “I have a lot going on right now with social media and I have to stay on top of it. But when the time comes, I really want to dive into acting. I want to get really good at it [my craft] and become a really good actor. I want to do modeling with that, and learn a bit more of the entrepreneurial side of things.” (link)
ACC Commish Phillips discusses a number of issues with The Athletic, including his thoughts on NIL legislation. Phillips contends there are four areas that need to be addressed to keep it manageable: a national standard, a “narrow, safe harbor,” open-mindedness, and fairness and equity. He also notes it’s important to move quickly with the first state laws taking effect this summer. “And listen, shame on us, because we’ve waited this long. And so I’m responsible as well. My fingerprints are on not doing enough. And so the time is now, we understand it’s now and I really am optimistic that we are going to get there in a sensible, reasonable way, as I just described.” (link); ACC Commish Jim Phillips re-emphasizes the need for a national NIL standard and adds the current revenue model must be kept in place to fund Olympic sports. “Anything that undermines that, it’s just not going to work. … This isn’t about a pay-for-play system. This is about an organized, really efficient national standard” for NIL. (link)
Sports Illustrated’s Ross Dellenger notes that while the various NIL bills that are being considered or have already passed in different states are not without their differences, a common theme has emerged from lawmakers on both sides of the aisle. Maryland Delegate Brooke Lierman (D-46): “This is a drumbeat you’re hearing from state capitals. We are tangentially working with one another because we are fed up with the NCAA’s archaic and unjust rules. We’re going to act in the absence of federal leadership. If enough of us act, I think Congress will do something.” LEAD1 CEO Tom McMillen agrees that “if that patchwork [legislation among the states] comes out, Congress will have to do something. They can’t let it get that chaotic.” For athletic departments, the lack of direction has left them in a catch-22 as they try to navigate potential disparities in NCAA rules and state laws. Big 12 Commish Bob Bowlsby: “It’s difficult for a school to resist what’s going on among elected officials in their state. They are the very people who allocate annual budgetary allocations to the schools. It isn’t a good idea to be at odds with your elected officials.” Texas A&M AD Ross Bjork adds: “I find myself reading more legislative bills than I ever have in my career. That’s the time we’re in. We’re past the stage of ‘Is this going to happen?’ It’s happening.” More from Dellenger. (link)
Louisville softball student-athlete Celene Funke pens an op-ed for Sports Illustrated in which she urges Congress to consider Olympic sport student-athletes when deciding NIL legislation. To start, she notes that Twitter first launched when she was eight years old while Instagram followed along four years later. Therefore, “building a brand on social media is second nature to my generation — and as a student-athlete, I think I have a right to monetize that brand.” Funke goes on to contend that it’s important for Congress to codify a national NIL standard before piecemeal state laws take effect. She adds: “For those of us who compete in nonrevenue sports, including but not limited to softball, soccer, golf, track and swim — and there are almost 200,000 of us who make up 80% of the student-athlete population — the scholarships we receive on behalf of our athletic abilities are life-changing. We need NIL legislation that will preserve the revenue-sharing model that uses the popularity of football and basketball to fund broad athletic programs on campuses of all sizes. … It’s time to modernize our NIL rules — and we can do it, while also protecting the majority of students who participate in nonrevenue sports.” (link)
ESPN’s David Hale profiles Fresno State WBB twins Hanna & Haley Cavinder, who have 2.7M followers on TikTok and an overall social impact that could earn upwards of $500K annually. Haley: “We have companies contacting us every single day. “It’s crazy to think we could make a living out of this.” LSU Women’s Gymnast Olivia Dunne says of her 3.7M TikTok audience, “Social media opportunities are definitely time-sensitive. There’s no professional sports for gymnastics, so I want to be making money while I can, right? I feel like [male athletes] have a different opportunity than I do, so it’s a bit unfair.” More. (link)
WCC Commish Gloria Nevarez weighs in further on NIL legislation, calling on lawmakers to “take care to make sure that new policies do not undermine the gains female athletes have made under Title IX. … I urge Congress to reject misguided proposals that would upend the collegiate model that provides opportunity to 80,000 female athletes per year in sports that cost more than the revenue they generate.” Nevarez notes that “one legislative proposal suggests forcing universities to pay salaries to football and men’s basketball players using 50% of the money their sports generate. That idea would upend our revenue-sharing model and be disastrous for women’s sports.” Furthermore, she points out that legislators would be wise to consider the impact such “misguided” legislation would have on athletic departments with leaner budgets. “Currently, the NCAA and member conferences are being sued for even contemplating rules changes to allow NIL payments. These suits seek to upend the student-athlete model that is definitional for college athletics and if successful, they would cause some universities in conferences like the West Coast Conference to reconsider whether to even field scholarship sports at all.” (link)
OSKR Founder and economist Andy Schwarz offers his thoughts on how he would craft federal NIL legislation: “Any federal legislation should come from a standpoint that college athletes are adults and full citizens. Enshrining into law some lesser status (e.g., they cannot endorse a CBD brand even though another student could) makes them second-class citizens. If a school is worried about unsavory endorsements, it can negotiate limits on the athlete’s rights as part of the general negotiations just as they do now with coaches. Markets are great ways for determining market value. Substituting a committee to determine ‘fair market value’ is a bad substitute for the market and is another example of how people want to carve out second class citizenship for athletes, as if they don’t deserve the full fruits of their market value. When people say they are afraid the market will come up either the ‘wrong’ value or will be a ‘fake,’ they are implicitly assuming that athletes have two sources of value — for their NIL and for the athletic services — and that while NIL payments are now ‘good,’ payment for labor services is not. Again, this assumption is a form of assigning athletes second-class citizenship because where else would being paid for having (legal) elite personal skills be prohibited? This suggestion is a sort of poison pill, that gets the law to treat ‘amateurism’ as a legal restriction, because if we say we’re worried an NIL payment might secretly be a payment for athletic services, and we prohibit that, we’re making the ‘amateurism’ rules into Federal law.” Full thread. (link)