NIL rules and the future of college sports: Where are we?

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n a new Mountain America Credit Union commercial, Utah quarterback Cam Rising and BYU receiver Kody Epps banter over which credit card offering is best. Epps suggests fans get a blue Visa Rewards card, while Rising touts a red Visa Cash Back card.

Just over two years ago, featuring college athletes like Rising and Epps in a television ad for a product would never have happened. Not because they come from rival schools (the late BYU coach LaVell Edwards and former Utah coach Ron McBride broke that barrier years ago) but because it would have violated all sorts of NCAA rules.

While coaches could pitch goods and services, like Edwards and McBride did in those Bank One “buddy” spots years ago, players were strictly prohibited from making money off their status on the field or the court.

That all changed in August 2021 after a U.S. Supreme Court ruling paved the way for college athletes to profit from their name, image and likeness, simply known as NIL.

Rising could have turned pro after last season. But he decided to return to Utah even before suffering a knee injury in the Rose Bowl that has kept him on the sidelines so far this year. He acknowledged the ability to earn money through NIL factored into his decision.

“I mean, a little part, but nothing (really significant). Yeah, it was a part of it,” Rising told the Deseret News at Pac-12 media day in July.

NIL, Rising said, has improved his life.

“I have met people and been a part of different situations that I really didn’t have exposure to and because of that I have more connections and stuff like that. I think it has been just beneficial and made my life that much easier,” he said.

And on top of that, Rising and the other 84 Utah scholarship football players could be driving a 2024 Dodge Ram truck courtesy of a new team NIL deal announced last week.

In a very short time, NIL has cemented itself not only as an integral pillar but a looming threat to the rapidly changing world of college athletics. Some schools embrace it, while some do not. Some states have laws governing it, some do not, making for murky waters. The transfer portal only compounds the situation, especially when lucrative NIL deals are dangled in front of players.

And a pending court case on whether college athletes are university employees could completely turn college sports on its ear.

Utah football coach Kyle Whittingham described NIL as “still chaos” and a “free-for-all” as it navigates its third year.

Whittingham said while he likes players being able to make money off their abilities, the way the system works now is unsustainable. He said college football is gravitating toward a minor league for the NFL that governs itself without NCAA involvement.

“If the NCAA tried to regulate it, they’d be sued so fast their head will spin. You can’t tell someone how much they can make unless they’re an employee. They’re not an employee unless it’s a minor league of sorts,” he said on ESPN 700 in the summer.

Jeffrey D. Allred, Deseret News

NIL is tricky for players, coaches, athletic administrators and government officials to navigate. It brings a raft of political, tax and trade issues, attracting the attention of Congress, state legislatures, the Internal Revenue Service and the Federal Trade Commission.

It has sparked discussions about fairness and athlete empowerment. It has created new opportunities for athletes to leverage their personal brands, but also brought challenges related to balancing academics, team commitments, compliance with regulations and maintaining the integrity of college sports.

Who’s getting what and how they’re getting it also raises questions about transparency and accountability, or the lack thereof, in college sports.

The Deseret News is attempting to shed light on NIL in Utah. We’ve sought NIL contracts, including the names of athletes, businesses and dollar amounts, from five Division I schools in the state under Utah’s open records law but each one denied the request, citing a broad federal privacy law. The Deseret News now has a case pending before the State Records Committee to determine whether the agreements should be public.

Name, image, likeness: A new industry

NIL has become an industry in itself, especially with the rise of “collectives,” which are organizations typically founded by alumni and supporters of a school that connect athletes to money-making opportunities as well as negotiate their compensation packages. Collectives allow donors, boosters and fans to contribute money directly to athletes, who typically must provide a small service to get paid.

The result of that brings unique deals, like the one just accomplished at the University of Utah. It’s understandable that the young faces of the program should benefit from their likeness. But who knows who the 83rd or 84th scholarship player is, let alone 50 through 80? Do they deserve new truck leases? Is it simply a way to fight the transfer portal?

The NIL marketplace is estimated at $750 million to $1 billion and is expected to balloon to $3 billion to $5 billion in the next five years, according to On3.com. Football dominates the NIL space, followed by men’s basketball.

Scant NCAA guidelines and a hodgepodge of university policies and state laws govern NIL. Proposed federal legislation to bring some uniformity has languished. Some have described it as the Wild West. And a big part of NIL remains shrouded in secrecy when it comes to athletes’ contracts and how much they’re making.

“I think a lot of it originates from the lack of guidance at the outset of NIL,” said Chase Peterson, a Salt Lake City attorney who has helped facilitate deals for college athletes.

Earlier this summer, the NCAA Division I Board of Directors directed the Division I Council to develop new NIL policy. Proposals include a registration process for NIL service providers — such as agents and financial advisers — a standardized contract or standard contract terms and disclosure requirements for athletes intended to provide transparency about NIL activities.

ESPN reported that the NCAA subcommittee in charge of examining NIL rules will meet this week to discuss several proposed changes that would allow universities to get significantly more involved in helping athletes make money from endorsement deals. The possible changes would give schools the clearance to find deals for athletes, review contracts, help them with preparing taxes, and provide resources such as cameras or graphic designers for athletes to complete their end of a marketing deal.

Jeffrey D. Allred, Deseret News

Most universities have policies and some states have laws requiring athletes to submit their NIL contracts to a compliance office for review even though the school is not a party to the agreement. But few, if any, make them public.

California, Connecticut, Georgia, Nebraska, New Jersey, South Carolina and Tennessee expressly require college athletes to disclose their NIL contracts to the university. And four of those states — Connecticut, Kentucky, Nebraska and Louisiana — forbid universities from making the records public.

The state of Utah doesn’t have an NIL law, leaving it to the discretion of the school.

At the University of Utah and other schools, administrators must review an NIL deal before an athlete signs it. There’s no such requirement for non-collegiate athletes on campus who might contract with a business to profit off their name. Say a company wants to make a deal with a social media influencer in the economics department or a wiz in gaming design, those students have no obligation to seek university approval.

“It’s very much an overreach, in my opinion,” says Russ White, president of Utah-based Oncoor Marketing, which manages the Royal Blue Collective at BYU and Sun Angel Collective at Arizona State. It also has worked with collectives at Utah, Wake Forest and TCU.

Athletes shouldn’t have to disclose to universities what they’re earning on their NIL deals, and schools shouldn’t be looking for dollar amounts in contracts, he said.

The University of Utah held up an NIL contract submitted by star receiver and kick returner Britain Covey, now with the Philadelphia Eagles, because a compliance officer wanted him to prove its fair market value. White said he pointed out that there were no comparables because NIL was still new and fair market value would be whatever someone is willing to pay. They were eventually able to work it out so Covey could get paid what White described as a “good amount of compensation” but it was frustrating.

“Why is it that the NCAA or the schools think that they have that right?” White said.

Spenser Heaps, Deseret News

Are NIL contracts public records?

The universities themselves could provide some transparency regarding NIL but so far have widely refused, including the five Division I public schools in Utah.

The Deseret News requested NIL contracts and written agreements athletes submitted to Utah, Utah State, Weber State, Utah Valley and Southern Utah for at least the past year under the state Government Records Access and Management Act or GRAMA. All five denied the request.

BYU was not included because as a private institution, it is not subject to the open records law. Asked about obtaining NIL records, BYU associate athletics director for communications and media strategy Jon McBride said in an email, “These are definitely things that BYU Athletics tracks, but these are not records that we have made public.”

Though each of the public universities had a slightly different take on how the state open records law did or didn’t apply to NIL contracts, all five say the federal Family Education Rights and Privacy Act, or FERPA, prohibits them from disclosing “education records,” a broad term covering “records directly related to a student” and “maintained by an education agency.” The universities also argued release of the contracts would reveal private financial information and be an unwarranted invasion of privacy.

The Deseret News appealed those decisions to the schools, modifying its request to allow the universities to redact the athletes’ names or identifying information. Those appeals were also denied. The Deseret News has now taken the case to the State Records Committee, a seven-member public body that hears appeals for records access denials under Utah’s GRAMA law. A hearing is scheduled in October.

“Using FERPA is a pretty weak argument,” said Dave Cuillier, director of the Joseph L. Brechner Freedom of Information Project at the University of Florida. “This is a huge battle right now.”

Asked whether FERPA applies to NIL contracts, a U.S. Department of Education spokesman pointed the Deseret News to an online FERPA guide for a definition of an education record, and when those records can and can’t be shared. Though written long before NIL was conceived, the law nonetheless makes no mention of third-party contracts students might enter into.

Keeping things private: A big mistake?

Universities across the country, with few exceptions, have declined to release any information about the NIL deals their athletes submitted for approval, despite some high-profile football coaches, including Alabama’s Nick Saban, calling for transparency.

NCAA President Charlie Baker said the NCAA made a “big mistake” when it failed to set up a framework around NIL when it had the opportunity. He became NCAA president in March.

“And I think there were too many people in college sports who thought no rules would work really well for them. And what everybody’s discovered is no rules, no transparency, no accountability, no framework, doesn’t work well for anybody,” he said at the Future of College Athletics Summit in June.

Schools argue that they need to review NIL contracts for a number of reasons, including wanting to weed out bad actors who might be circling the program and ensure it doesn’t jeopardize players’ eligibility.

“From an administrator’s perspective, it’s the most high-profile area of a college campus. There is certainly a PR perspective to that. They’re just not going to be as concerned about the geometry student who has an NIL deal,” said Patrick Stubblefield, a Seattle-based attorney and former compliance officer at the University of Oklahoma.

Last year, ESPN asked 23 universities, including 20 from Power Five conferences, to release NIL-related information or data. It chose schools that reflect various regions, conferences, and state NIL and open records laws. The universities provided few to no records, Paula Lavigne and Dan Murphy reported last October.

As in Utah, most schools cited FERPA. ESPN sent a follow-up email to several schools explaining how federal student privacy laws allow them to release records if students’ identifying information was removed or redacted, but to no avail.

An article in the Temple Law Review by University of Florida legal scholar Frank LoMonte concluded that concealing NIL records does a disservice to the interests of the public, the athletes and college sports in making sure that competition is fair, honest and passes the test of legitimacy, and that athletes have equitable earning opportunities befitting their level of accomplishment. 

“It seems difficult to argue that fans have a legitimate interest in knowing whether Joe Quarterback has the stomach flu but not in whether Joe Quarterback is making $1 million to play for a state college,” LoMonte, who now works as legal counsel for CNN, wrote.

In 2021, the Athens Banner-Herald sued the University of Georgia Athletic Association after it declined to release copies of the NIL disclosure forms that athletes are required to fill out, citing state and federal data privacy laws, including FERPA.

The court ruled in September 2022 that the NIL agreements do meet the threshold definition of “education records” because they pertain to particular students and are maintained by the institution, but allowed the case to move forward on the question of whether the records could be adequately redacted.

Also in 2021, WAFB-TV in Baton Rouge sued Louisiana State University seeking endorsement contracts on file with the school’s athletic department, arguing the documents should be disclosed because Louisiana’s NIL law does not specifically provide an exception for public records. LSU countered that releasing the records would be a FERPA violation, and invade the athlete’s privacy and companies’ confidential business practices. 

A state court judge ruled in the school’s favor, and the television station did not appeal. 

“Given the enormous public interest in college sports and in prominent college athletes, recurring disputes over access to the details of NIL arrangements are likely. As more and more money flows into NIL deals, the public’s interest in transparency will only intensify,” LoMonte wrote.

While the vast majority of schools have refused to disclose NIL contracts, Nevada Sports Net obtained information from the University of Nevada through a public records request in August 2021, just six weeks after NIL took effect. The university redacted the names of each athlete, citing FERPA. But the records provided a glimpse into what kind of deals Wolf Pack athletes had signed and how much money they were getting.

The lack of transparency could make it difficult for athletes to determine their worth in the NIL marketplace. Without clear aggregated figures, it is difficult for athletes to assess whether the deals they are offered are fair, according to an article in Villanova Sports Law.

LoMonte also argues the lack of transparency could have Title IX implications. Having access to NIL contracts could reveal whether schools are disproportionately steering NIL deals to male athletes or investing disproportionate resources in marketing male athletes.

“After decades of effort to narrow the equity gap through Title IX, it would be regrettable if NIL reopens or even widens the gap,” he wrote. “Without disclosure, there will be no reliable way of knowing.”

Any collective that is really serving its purpose should be doing deals with female athletes and male athletes and from every sport, White said.

Jeffrey D. Allred, Deseret News

NIL started with a Supreme Court ruling

In the summer of 2021, the U.S. Supreme Court unanimously ruled that the NCAA’s restrictions on education-related benefits violated federal antitrust laws. While the case, Alston v. NCAA, didn’t deal directly with NIL, it allows schools to provide athletes $5,980 in education-related compensation annually.

The decision led the NCAA to issue one page of interim guidelines instead of the detailed policy it had been working on.

As of July 1, 2021, college athletes were permitted to profit from the use of their name, likeness and image. Those activities, which may include endorsing products, appearing in commercials, signing autographs and monetizing social media platforms, must be consistent with state NIL laws or, in their absence, university policies. NIL opportunities may not be used as a recruiting inducement or as pay-for-play.

The NCAA later clarified that NIL deals must be based on a true quid pro quo arrangement — meaning the athlete must do some work, whether it be a social media post, public appearance or TV commercial. It prohibits deals that are contingent upon an athlete’s enrollment at a certain school or upon athletic performance.

Are college athletes employees?

Athletic conferences and universities have drawn a hard line against considering athletes as employees. But several legal fights that could force the NCAA to change its rules are winding through the courts.

While the Alston cases paved the way for NIL, the outcome of another court case, Johnson v. NCAA, could cause a huge shift in college sports, Stubblefield said.

“That case is not getting the attention I think it probably deserves,” he said. “Alston got more attention. Johnson would have bigger impact.”

In that case, several former Division I athletes argue that they should be considered employees of their universities under the Fair Labor Standards Act and should be paid for their time related to their athletic activities.

In May, the National Labor Relations Board’s Los Angeles office issued a complaint against the NCAA, the Pac-12 Conference and USC, alleging unfair labor practices in “misclassifying” college athletes as “student-athletes” instead of employees.

Pac-12 commissioner George Kliavkoff said that is the “bigger and existential threat” to college athletics, saying there’s a “constant assault that we see of folks trying to mischaracterize our student-athletes as employees.”

“If our student-athletes are deemed to be employees, if they are unionizing, collectively bargain, we end up in a place where I don’t think most of our schools or schools around the country will be able to support our Olympic sports, our women’s sports. I think that money dries up, and I think we have work to do there,” he said at Pac-12 media day in July.

As many college sports administrators have done, Kliavkoff, Whittingham and Utah athletic director Mark Harlan say Congress needs to set national standards for NIL. Harlan said he doesn’t believe federal guidelines would hinder players from maximizing their earning potential.

“I think having a national standard would be ideal, right? Just in our conference footprint alone, there are some states restricted, where Utah is not, without a state law. That’s not a way to run competition,” Harlan said at Pac-12 media day. “At the same time, I don’t think any kind of national standard would hinder the ability to maximize NIL.”

Recently, several U.S. senators, including Sen. Cory Booker, D-N.J., who played football at Stanford, and Sen. Tommy Tuberville, R-Ala., the former Auburn coach, and congressman, have introduced various bills to regulate NIL deals. The proposals would preempt state laws, require agents and collectives to register and provide transparency on NIL contracts, among other things. Previous legislation on NIL has gone nowhere.

Whittingham wonders if Congress really is interested enough in college sports to take a stand on NIL.

The irony of it all

Some find irony in the demand for federal regulation.

“At the end of the day, it’s really uncharted territory, uncharted waters. Any kind of regulation or guidance we could get would be great, which is ironic we say that because we’ve always thought — a lot of the industry has thought — we’re overregulated,” said Kyle Brennan, the now former CEO of the Crimson Collective, which carries the University of Utah’s stamp of approval.

As evidence of how quickly things can change in the NIL space, the collective and Brennan parted ways after about three months.

NCAA rules allow athletes to use professional services providers — typically collectives — for NIL activities.

That gave rise to what White, the Oncoor Marketing president, called an “arms race” in college sports, especially football.

Under previous NCAA policies, a college athlete couldn’t even accept a hamburger from a booster. Now, the “sky’s the limit. If your market value demands it, you can get it,” says Brennan, a former Utah assistant athletic director who returned to the state after a stint as the athletic director at Illinois State.

“Recruiting is the most important thing to succeed in college football over anything else, hands down,” Whittingham said when the Crimson Collective launched in April. “The biggest advantage to gain in recruiting is NIL resources, without a doubt. It’s the No. 1 thing that moves the needle, that allows you to retain a roster and recruit new guys into the program.”

The Crimson Collective says it has raised $3.25 million so far this year, but is pushing to hit $6 million by December.

Schools used to wow recruits with state-of-the-art weight rooms and locker rooms, packed stadiums and cool gear. Now, they have to show them the money, too. Brennan says he believes some of the “over-the-topness” on facilities will come down as players want to know their earning potential.

“You have to be able to check the box and have good facilities, but it is really important that you’re in the NIL space because if you’ve got the best facilities in the world and you’re not offering NIL space, kids aren’t going to come,” he said.

Jeffrey D. Allred, Deseret News

The rise of ‘collectives’

Collectives — which started popping up all over the country and number around 200 — help make that happen. A group of prominent University of Texas donors, former athletes and a sports marketer, for example, launched a collective with an initial commitment of $10 million for NIL activities.

Brennan said certain schools are always going to have more money than others and that won’t change. “But the disparity right now in how this (NIL) is being interpreted by each school is all over the map. It creates a lack of equity and competition.”

Though unaffiliated with a university, collectives may have the school’s endorsement. Some are 501(c)3 nonprofits, while others are for-profit entities. Stubblefield says the relationship between schools and collectives is a gray area.

“I don’t think what can and can’t be done with collectives is super clear to administrators on campus,” he said.

At least two schools, Duke and Villanova, have hired “general managers” for their basketball teams to oversee NIL opportunities, athlete brand-building and marketing, and the transfer portal, among other things.

Asked at Pac-12 media day how he handles NIL, UCLA coach Chip Kelly said, “Well, NIL is supposed to be dealt with outside your program. I don’t know if people realize that.”

Certainly, the line between collectives and universities is blurred. Both have the same goal to attract the best talent to build a winning team that will draw fans and enhance revenue. Again, most of the focus is on football.

Rules? What rules?

Ostensibly, collectives gather funds to pay athletes who are already attending a school. But in practice, some of the more aggressive ones entice players with promises of big NIL money.

“The reality is this has become more of a pay-for-play model, whether we like it or not,” Boise State athletic director Jeremiah Dickey said in a Global Sport Matters story earlier this year. “That’s what you’re hearing more publicly, and obviously there aren’t specific examples, because everyone’s talking in generic (terms).”

That’s happening with high school recruits as well as established college players looking to transfer.

“I can tell you right now, 10 athletes that we work with have shown me offers they’ve gotten from other collectives to hit the transfer portal, before they’re even in the transfer portal, which is a clear violation,” White said. And he said he knows of some who received offers without even being in the portal, in one case the collective working through the player’s high school coach.

Ohio State athletic director Gene Smith testified in Congress in September that some athletes are looking for payment from universities on their recruiting visits.

“A practice of asking a school for a fee to simply visit campus has emerged; asking for $5,000 just to visit has become common. During visits, discussions now emerge regarding how much a student-athlete can expect from NIL,” he said.

The Associated Press reported the University of Florida’s Gator Collective offered quarterback Jaden Rashada, a top high school recruit, $13 million to sign with the Gators. Rashada signed a letter of intent and was set to enroll at Florida but the collective couldn’t deliver on its promise. Rashada asked for and was granted a release from the school. He is now at Arizona State. He signed an NIL deal to promote a bicycle company, which included an e-bike he rides to get around campus.

Chase Seabolt, Associated Press

What is an athlete worth?

A nonprofit NIL collective at Texas Tech called the Matador Club pays 85 scholarship players and 15 walk-ons $25,000 annually in a teamwide deal. Players are expected to perform community service and charitable work in exchange for the compensation.

Steve Ross, a law professor and executive director of the Center for the Study of Sports in Society at Penn State, has no problem with college athletes cashing in on their celebrity. But he questions deals like the one at Texas Tech.

“It can’t be because his NIL is worth that,” he says of the last man on the Red Raiders’ roster. “What we have is a temporarily unique situation in commercialized sports. You now have a labor market that is being controlled by third parties. There’s nowhere else in the world that you have this, where third-party boosters are able to control the labor market by paying people an amount that bears no relation to the economic value of their NIL.”

Ross said he doesn’t take issue with a local business paying players who compete in a market with other players, even pro athletes, of higher or less value.

“The fundamental decision is can the university prevent players from being paid to play?” he said. “If the answer is no, we ought to pay them to play, treat them like employees and just make them professional athletes.”

Just last week, Utah tried to do Texas Tech one better with one of the most creative NIL deals in the country. The Crimson Collective announced a deal to provide all 85 Ute scholarship football players a one-year lease on a 2024 Dodge 1500 Big Horn truck, complete with night package, valued at about $61,000. Donors will cover the insurance and lease as long as the player is on scholarship.

In return for the truck, players are encouraged to do a community service project, something the collective puts a high value on as it arranges NIL contracts.

Matt Garff, Crimson Collective board chairman, said part of the collective’s mission is to get players involved in helping local charities. But it’s also to draw the best football players to Utah, and access to a new truck is a benefit that would impress a high school recruit or keep a player on the roster.

“It’s all about creating an advantage,” Garff told ESPN 700.

But, he said, the Crimson Collective is trying to do it the right way, noting other schools go after Utah players who aren’t even in the transfer portal.

“I’m worried about the IRS. Mark Harlan is worried about the NCAA. But these other schools are totally blowing through the rules,” Garff said.

NIL: Who’s really cashing in

Athletes don’t have to be stars to cash in on NIL, though it certainly helps them reel in big money. Those with a strong social media presence and good promotion can do well whether or not they’re getting much playing time.

But only about 17% of athletes at Division I athletes participated in NIL activities in 2022, according to Bill Carter, an NIL consultant and educator who runs Student-Athlete Insights. According to the NIL marketplace Opendorse, the average compensation for athletes on its platform was about $1,300 per deal. Carter also likes to look at median compensation, which he found through numerous surveys last year came to about $65 per NIL activity. Social media accounts for about three-fourths of NIL activity.

On3.com, which attempts to track NIL deals, developed an algorithm that places an NIL valuation on college athletes. The valuation, which accounts for performance, influence and exposure, indicates athletes’ earning potential, not what they have made through NIL. It is updated weekly to reflect changing circumstances.

Bronny James, son of NBA star LeBron James, has the highest at $6.1 million. Colorado quarterback Shedeur Sanders, son of former NFL star Deion Sanders and current Buffaloes head coach, shot up to second at $5.1 million. Former LSU gymnast Livvy Dunne — one of only two women in the top 10 — checks in at third with a $3.2 million valuation.

Among college athletes at Utah schools, Utah defensive end Jonah Elliss currently has the highest NIL valuation followed by BYU offensive lineman Kingsley Suamataia (he’s on a freeway billboard pitching the Korean eatery Cupbop), according to On3.

Determining the market value or worth of a college athlete is difficult.

In the NFL, everyone knows how much every player makes. Salaries generally are based on position. In college, there’s no established market. It’s just rumor.

While at the Crimson Collective, Brennan said it was difficult trying to figure out a player’s fair market value on its own or based on what businesses are willing to pay, noting they’re not going to overpay. He said he favors more transparency with NIL contracts.

“I think a lot of people in the industry would be for transparency because it would take a lot of the guesswork out of what we’re doing right now. That being said, I don’t know if that’s coming,” Brennan said.

But one thing everyone agrees on is that NIL will continue to change and isn’t going away. College athletes will get paid from here on out. Though there might be more regulation coming, it will take a while to get there.

“College athletics has always been an ever-changing industry,” Brennan said. “Those who accept it and don’t bemoan it but embrace it, they’re the ones who are going to have success.”