By Ashtin Larkin, NIL Network Research Analyst
The NCAA was founded in 1906 to regulate the rules of college sports and protect young student-athletes. As it evolved over time, it adopted principles covering financial aid, recruitment and academic standards, which were all intended to safeguard the student (aka “amateurism”) aspect of college sports. Unfortunately, due to this concept of amateurism, the student-athletes dedicating 40+ hours a week to their sport are unable to see any monetary compensation for their hard work, unless they go pro. Of the approximately 500,000 NCAA student-athletes, less than 2% go pro in their respective sport.
Additionally because of the NCAA’s definition of amateurism, student-athletes were excluded from profiting off their Name, Image and Likeness (NIL); a right that is inherent to all US citizens.
As a result of the NCAA’s rules, the organization has tangoed with antitrust lawsuits over the past few decades. Notably, the O’bannon case (settled in 2014) brought national attention to the NCAA’s use of former athletes’ likenesses for commercial purposes and most recently, the Alston case (settled in June 2021) was an antitrust lawsuit that challenged the NCAA’s restrictions on education-related compensation.
From a legal perspective, the Alston win implied that the NCAA was not above the law and could not control the market on talents of student-athletes (could not fully restrain student-athlete compensation). Immediately following the Alston decision, the NCAA modernized their rules surrounding NIL and adopted a uniform interim policy for current and incoming college student-athletes. The new policy requires quid pro quo and disallows pay for play and deals based on enrollment or continued enrollment. Additionally, schools cannot engage in NIL negotiations nor can they provide free services for their student-athletes.
But athletic departments can and should provide education for their current student-athletes.
Upon the removal of NCAA restrictions in July 2021 and without the presence of federal NIL regulations, students were able to engage in NIL deals “at their own risk.” States created and implemented their own guidelines. Some states created restrictive NIL parameters, while others implemented nothing at all.
The de-regulation of NIL led to an open marketplace and money exchanging hands. In year one, the exchange of money looked very similar to “pay to play” with the rise of Collectives. These businesses, independent of universities, are a new phenomenon that are typically started by prominent alumni or donors to raise money and assist in facilitating NIL deals for student-athletes at their favorite university or team. Limited regulation of Collectives presented a slippery slope for both student-athletes and schools.
While year one was in large part focused on money and who could be first, I believe year two and three will be focused on education. At this point, most Universities appear to be taking a step in the right direction and participating in NIL, rather than fighting against it.
Thus far in speaking with university personnel, third party consultants, legal associates, and student-athletes, the consensus is a desire to support student-athletes navigating NIL through personal/professional development, comprehensive education, and engagement.
The lack of formal regulation, differing state NIL laws, and changing guidelines by the NCAA mean that every university is in a different stage of their NIL pursuits and/or programming. Due to this, education is administered at scale, dependent upon university capability and student interest. In year one companies like Altius, Advance NIL, Athliance and Spry offered their educational and compliance services to various schools and their athletes. Tech companies like INFLCR, MarketPryce, Opendorse, Iconsource and MOGL, offered educational resources within their digital marketplace platforms. Thus far, 31 schools have employed on-campus NIL specific personnel.
NIL Resources & Education Implementation
The next step in successful educational NIL implementation involves the continued hiring of NIL administrators, course programming, legal clinics, and internal school partnerships. Let’s look at a few early adopters who have begun the challenge of applying the aforementioned educational opportunities:
Currently student-athletes are signing contracts with little to no knowledge of how contracts work or how binding they can be. Due to NCAA guidelines, athletic departments and compliance personnel are unable to assist student-athletes in comprehending their contracts. Many student-athletes have no access to affordable legal assistance, potentially placing them into a future legal minefield. A few innovative universities have addressed this issue:
Courses for credit allow all interested students to take advantage of their interests, while receiving a foundational curriculum for future success.
Universities with programming between student-athlete development and other institutional entities (ie. business schools, communications dept, etc.) are miles ahead in their investment in the overall well-being of their student-athletes. Program success is dependent upon athlete buy-in and tailored to each individual.
Texas A&M athletics partnered with the business school, leadership institute and the law school to create AmplifyU. The program is made up of real-time educational workshops to assist athletes in leveraging their innate abilities to succeed in business.
Over the years, universities have been investing time and resources into developing educational programming to prepare their student-athletes for life after college. NIL offers a new opportunity for athletic departments to level-up and enhance their programs. By incorporating NIL education into their professional development programs, which their athletes can utilize right away to make income, schools may be able to increase engagement and reach more student-athletes. Additionally, it enables schools to have a greater impact on overall student education and community involvement.
Up until now, NIL is depicted as only beneficial to the student-athlete. When in fact, comprehensive education can benefit all students interested in enhancing life skills, career development, and entrepreneurship. The aforementioned programs and many more emphasize the growth of the student by assisting them in understanding who they are, determining their core values, and articulating their story. The recently created legal clinics and pro-bono projects not only assist in the on-demand legal education for student-athletes and entrepreneurs, but also generate experiential learning for law students.
New NCAA Guidance
The NCAA works to promote three guiding principles: academic success, student-athlete well-being, and fairness. As of October 26, 2022, the NCAA released further guidance regarding NIL and the reinforcement of current NCAA rules. The newest NCAA guidelines focus on athlete education, one of its foundational roots. Student-athlete NIL success (monetization and longevity) is rooted in education. Under the new guidance, schools cannot provide free resources/services to student athletes unless they are available to the general student body. This thought process is somewhat contradictory to other NCAA bylaws, being that student-athletes currently have resources that are not available to all. Recent services created to assist student-athletes may need to be modified to align with this policy. But Bylaw 16.3 permits institutions to finance and assist student-athletes with personal development services and I believe those programs fall under that umbrella, while assisting students in the general population (i.e. Law clinics, branding clinics etc.)
Student-Athlete Enhancement Opportunities & NIL
Although NIL is an evolving landscape, education must be the tree that the NCAA and other organizations (NAIA and NJCAA) member schools continue to return to. They must be rooted in the growth of all of their students via education first. After all, universities and colleges are educational institutions above all else. Although NIL has opened up new doors for student-athletes, it is unrealistic for athletic departments to sit on their hands and allow their athletes to flounder when there are so many resources that can be made available to them by their schools.
The following three branches of standardization can begin to grow from the tree of the governing bodies of collegiate athletics and assist athletes: enhanced student-athlete onboarding, expansion of internal partnerships, and direct student-athlete communication.
Increase Student-Athlete Onboarding Efforts
Expand Internal Partnerships
Growth in programming and partnerships between student-athletic services/player development and business schools, law schools, journalism/communication etc. can lead to tremendous experiential growth for both student-athletes and non-athlete students.
OPPORTUNITY FOR ALL STUDENTS: Giving all students the opportunity to have a growth mindset in a structured environment has the potential to lead to economic growth and more societal impact.
INTERNSHIPS: Often internships are hard for student-athletes to obtain due to their time constraints of practice, study hall, weight room etc. By working together, schools can find a way to maximize their resources and make an all around impact.
STUDENT-ATHLETE DEVELOPMENT PROGRAM: Implementing new player development programming or enhancing player development/life skills programming with this new NIL dimension has the potential to assist student-athletes in their leadership skills and endeavors, empowering them to realize that they are more than their skills in their sports arena.
Increase Communications with Student-Athletes
Ask athletes how they want to approach NIL. NIL was thrust upon many student-athletes with limited guidance and direction. Most student-athletes thrive in structure. By working with student-athletes to create a roadmap for NIL, they have a structure to work within and they will be empowered to make it their own.
Student-athlete input allows learning from coaches, admin staff, player personnel etc., but it also initiates a conversation. There is currently a disconnect between student-athletes and school officials. A conversation allows concerns to be addressed and solved through meetings, summits, workshops etc.
Similar to athletic facilities and academic/personal development opportunities, schools with more money are able to offer more resources to their students. Although this is a recognized reality in college athletics, it would best serve student-athletes if collegiate athletic governing bodies were able to establish a minimal set of programming for all Universities. Whether programming (branches) be through player development (personal and professional), legal services, or internal/external partnerships; everything should begin with education (the tree). Setting up minimal programming will prevent/assist with possible Title IX and legal issues in the future. In my opinion, the true success of NIL will be measured in education (back to the tree).
Research Analyst, NIL Network
Ashtin played soccer at West Virginia University and graduated with a degree in Criminology and Investigations with a minor in Psychology. Thus far, she has worked as a Forensic Specialist in LA County. Ashtin is currently enrolled at Loyola Law School, obtaining her Master’s in Legal Studies, with an emphasis in Sports Law. She looks forward to using her degrees and experience to assist student-athletes with the new rigors of NIL; specifically focusing on the education of athletes on NCAA rules and federal and state laws.