Prior to winning a Heisman Trophy and leading the University of Nebraska–Lincoln football team to the NCAA National Championship game in 2001, Huskers starting quarterback Eric Crouch ran afoul of NCAA rules in the 2000 season.
As part of a public appearance, Crouch accepted a ham sandwich and a short plane ride valued together at $22.77. Breaking NCAA rules on accepting outside benefits earned Crouch a short-lived suspension, and he cut a check to pay back the costs of the infraction.
Fast forward to 2021: Bryce Young, the presumptive starting quarterback at the University of Alabama, has signed endorsement deals worth nearly $1 million. Not to be outdone, Hercy Miller — son of rap impresario Master P and an incoming freshman basketball player at Tennessee State University — signed a $2 million deal.
From prohibited ham sandwiches to open season for endorsement deals, the NCAA rules on athletes accepting benefits and earning money for their name, image and likeness changed abruptly in June. That’s when the U.S. Supreme Court ruled in NCAA vs. Alston, a loosely related case, that the association could not bar member schools from offering certain education-related benefits to student-athletes. Though student-athletes profiting off their name, image and likeness was a separate issue, the 9-0 ruling prompted the association to drop its resistance.
“Judge (Brett) Kavanaugh put out a blistering consenting opinion, which forecasted the court’s view of the NCAA and captured the sentiment that the NCAA is more broadly violating fundamental antitrust laws and had broader questions been brought before the court, the NCAA would have been trounced,” explains Andrew F. Dana, a partner at the law firm Parker Poe Adams & Bernstein LLP.
Following the ruling, the rules on NIL in college athletics changed in mere days.
— The NCAA website breaks these changes down into four bullet points, summarized here:
— Athletes can now engage in NIL activities in compliance with state laws and colleges can serve as a resource for NIL legal questions.
— Athletes can use professional service providers to help navigate NIL activities.
— Student athletes in states without NIL laws can still engage in such activities without violating NCAA rules.
— States, as well as individual colleges and athletic conferences, may impose reporting requirements.
Understanding How NIL Works
Though some states had already passed NIL laws, student-athletes across the U.S. can now benefit from the NCAA rule change.
Kenneth L. Shropshire, a professor and CEO of the Global Sport Institute at Arizona State University–Tempe, notes that existing laws vary in the states that have them in place, but there are some similarities.
“A lot of the language looks to bar endorsement deals that conflict with those of the school,” Shropshire explains, adding that there also tend to be morality clauses that may bar athletes from endorsing certain products such as alcohol or gambling — things “that would be outside the realm with which the school would wish to be associated.”
So what’s fair game? “Anything that is not a direct reward, compensation-wise, for your athletic performance,” Shropshire says.
Some of the early deals to come out of the new era of NIL are sponsorship agreements with gyms, pet care companies and restaurants at both the local and national level. At several schools, offensive linemen — a position where some football players are often upward of 300 pounds — have signed on with barbecue restaurants.
Shropshire encourages athletes to recognize that a deal that seems too good to be true probably is. For example, collecting payments from university boosters without providing anything in return will likely land a student-athlete in trouble. There should be clear expectations about what the athlete is providing in return for compensation.
And in the absence of state guidelines, colleges should be able to provide insights into proper NIL deals.
“Look to the college regulations, check with your compliance officer to see what’s allowed,” he advises student-athletes.
Carley Barjaktarovich, a shortstop on the softball team at Lehigh University in Pennsylvania, got in on the NIL action by signing a deal with the Lehigh Valley IronPigs, a local minor league baseball franchise. Barjaktarovich, who was already working within the organization, will make appearances and help with marketing, promotions and social media.
While she was able to work for the organization as an employee, Barjaktarovich can now use her status as a college athlete in a more public-facing role. Since she hadn’t been tracking NIL closely, the rule changes came as a surprise.
“I assumed that one day those rules would be changed, I didn’t really know that it would be within my playing time in college,” she says.
Barjaktarovich notes that she worked with her school to help clear the deal, having discussions with officials tasked with overseeing compliance. She also must report details of NIL activities to the school via a third-party mobile app named INFLCR, which works with more than 140 colleges on NIL management, according to the company website.
Recognizing the Value of a Personal Brand
Historically, the big money sports in the NCAA have been football and men’s basketball. At the professional level, a clear pay gap is visible between men’s and women’s sports. There is some concern that this disparity will extend to the NIL era, with top male athletes cashing in while their female counterparts settle for smaller deals.
There have also been concerns that athletes in mid-tier schools and outside of NCAA Division I sports would see little reward from NIL. The truth is more complicated and tied closely to individual creativity, suggests one expert.
“High-profile university athletes, their university has a value or a price premium, but it’s really a minor influence. The real value is with individual athletes,” says Thilo Kunkel, a professor and director of the Sport Industry Research Center at Temple University in Pennsylvania, who also founded a company to help student-athletes with social media engagement and opportunities.
While being a star player on the nation’s top football or men’s basketball team may provide a name recognition bonus, lesser-known student-athletes can use social media as a powerful tool to help level the playing field. Research conducted by Kunkel indicates that athletes outside of the traditional big money sports can leverage social media to collect NIL earnings.
“Social media purely provides the freedom for athletes to get really creative in what they want to engage with, what they want to build their brand on and how they want to monetize it,” Kunkel explains.
Hanna and Haley Cavinder, players on the women’s basketball team at California State University–Fresno, are oft-cited media examples of college athletes who have harnessed the power of social media and are poised to make a splash with NIL. With more than 3.4 million followers on TikTok, the twins have the kind of influencer appeal that brands covet.
“I think, regardless of the division and regardless of the sport, the name, image and likeness value of an individual athlete will vastly depend on how they’re able to build a powerful personal brand,” Kunkel says, noting that his research, which involved applying influencer standard pricing, found no expected gender pay gap in potential earnings.
Experts also encourage student-athletes to focus on building a personal brand over taking easy money.
“You are establishing, potentially, your lifetime brand and who you want to be associated with going forward,” Shropshire says. “It’s not just something that the university is concerned about. Individual athletes should take a moment to reflect on what they want to be associated with.”
Finding a Support System for NIL Deals
Navigating the complexities of the new NIL rules is a team sport unto itself. Experts note that there will be tax issues to consider, contracts to review and compliance issues to deal with. Student-athletes are suddenly small business owners.
Dana encourages students signing NIL deals to consider consulting with attorneys, accountants and personal advisers.
While smaller deals may be easier to navigate and simple enough to report on a 1040 tax form, that will become more challenging as the dollars tick up. The old maxim “more money, more problems” rings especially true for tax season.
While there are companies that help student-athletes find endorsements and navigate the new waters of NIL, there are tradeoffs such as paying out a percentage of profits to those helping mint such deals, experts note. While such agencies can prove useful, Dana cautions students to carefully do their research before inking any contracts.
“The professional sports world is rife with predatory behavior and that will expand into the NIL world,” Dana says. “Athletes and families need to be very judicious and thoughtful and careful about who they partner with, because it can affect the athletes’ brand and economics.”
An added complication for international student-athletes is that their immigration status may bar them from NIL earnings. In such cases, Dana notes that “it absolutely is an issue that requires an immigration attorney to evaluate.”
High school students being recruited to play college sports also need to carefully weigh the decisions they make regarding NIL. In the absence of NIL rights at the high school level, top-flight prospects may run into legal challenges if they try to cash in early, which could affect their NCAA eligibility. One highly ranked football recruit skipped his senior season in high school to enroll at Ohio State University–Columbus early, making him eligible for NIL participation — a scenario that some experts suggest may become more common as the new NIL era unfolds.
Given the novelty of NIL rights, Barjaktarovich encourages fellow athletes to be patient as the landscape emerges. Her advice boils down to “stay true to yourself” and “don’t rush into anything.”
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Name, Image, Likeness: What College Athletes Should Know About NCAA Rules originally appeared on usnews.com