Beginning on July 1, college athletes were allowed for the first time to monetize their names, images and likenesses (“NIL”). This sea change came about through two years of state legislative efforts, broad public support for the idea, and ultimately, grudging acceptance by the NCAA when it ran out of options.
The advent of NIL for college athletes is, depending on your view, either a long overdue reform or the beginning of the end of college sports. Some are concerned that NIL is ultra-complex and dangerous and should be heavily regulated. Others (like me) don’t agree, finding NIL to have lots of upside and not many problems. Now, the universities are each creating their own NIL rules, and they seem to agree that NIL need not be regulated with a heavy hand.
Schools like Duke, N.C. State, Kentucky, Michigan, Alabama, N.C. State, Auburn, Richmond, and Davidson have issued similar and simple NIL rules, and most of them cover only two or three pages. More come out every week. Compare these rules to the last (never finalized ) NCAA proposed NIL rules, which covered over 20 pages of fine print that read like the Internal Revenue Code. The schools’ approach is a breath of fresh air.
The college rules broadly permit athletes to earn money by endorsing products or selling ad space on their social media feeds, making personal appearances or running summer camps, and profiting in almost unlimited ways from their athletic talents and fame. The few limits placed on NIL are, first and foremost, no use of NIL in recruitment. Everyone agrees that’s very important. Other common rules: no payments from the school itself ; no rewards for particular accomplishments (like touchdowns); no infringement of university trademarks; no conflicts with existing university contracts; and no ads for gambling, drugs, and the like. I’m not saying these rules are perfect, but they are easy for athletes to follow and leave plenty of room for them to exercise their new rights.
But, you may ask, what about all these new things athletes can do? TV advertising, apparel deals, and a dizzying array of social media activities – isn’t this going to be chaotic? Shouldn’t the colleges control this?
The answer is no. The schools aren’t supposed to control what is called “third party NIL,” any more than they control the income of their students who can sing, act or write code. And except in limited contexts like recruitment, these NIL activities are harmless. The situation only looks complicated because the NCAA has been so slow to reform.
If you’re not convinced, try this exercise. Imagine that when shoe companies began throwing money at major universities, they would have thrown some at Peyton Manning, UConn hoops star Sue Bird, and others. No problem there. When social media became prominent, athletes like Cam Newton and less famous contemporaries could have cashed in online, where everyone can try to be a star. Please show me the issue.
The situation looks dangerous to some because all these opportunities arrived at once. The dam has burst, but this river of opportunities doesn’t threaten college sports, and the colleges themselves have shown us that through their reaction — minimal regulation.
Yes, the proverbial Tuscaloosa car dealer who (according to Alabama’s rivals) slips bags of cash to high school stars to entice them to go to Bama can now offer overpriced NIL deals. That’s illegal recruiting, and the NCAA should continue to police it. But a rich NIL deal that the same player gets when he proves himself, or smaller deals for less famous athlete, are not troublesome.
So I say, bring it on, and don’t worry about it too much. It will look messy, some athletes will make mistakes, but it won’t hurt college sports. It will make them look more equitable, as those putting on the show will share in the wealth, without costing the schools a nickel.
Len Simon, a lawyer and law professor in San Diego, has taught at Duke, the University of San Diego, and the University of Southern California. He worked on first-in-the-nation California NIL legislation, and has represented athletes, sports leagues and others in the sports world.