Name, Image, Likeness (NIL) Important Q & A!

Name, Image, Likeness (NIL) is at the forefront of student-athletes issues, as the growing movement to grant college athletics participants basic rights has  grown from advocacy groups to legislation that is soon to become law in states across the country. This just didn’t happen overnight. It’s been a growing movement for over 20 years and a hot topic in recent ones. Ballislife was able to sit down with Marc Isenberg, a noted athlete advocate and one of the country’s foremost authorities on the subject of NIL, to discuss its most important concepts and the initial steps parents and students must take to create the best possible student-athlete experience within the framework of the rapidly-changing NCAA landscape.

Editor’s Note: Fore more on the topic of Name, Image, Likeness (NIL), please listen to Episode 31 and Episode 66 on the Ballislife-produced “In The Paint” show. Special guests on those two episodes include Ramogi Huma, the executive director of the student-athlete nonprofit advocacy group National College Players Association (NCPA).

Ballislife: As legislation passes in various states offering student-athletes some basic protections and control over their Name, Image and Likeness (NIL), what is the No. 1 aspect of this movement athletes and parents need to understand when these bills become law?

Isenberg: As much as I would love for NIL opportunities to be available to all college athletes, the reality is, most opportunities will be concentrated among a small percentage, likely football players, men’s and women’s basketball players, maybe a few gymnasts.

At the same time, I see NIL as a great opportunity for enterprising athletes to use their platform to become social media influencers, product promoters, offer private sports lessons and maybe even organize sports camps.

The value of NIL will ultimately be determined by three things: 1) What NCAA rules allow 2) how much the school wants to support players maximizing NIL opportunities 3) the player’s hustle.

Ballislife: Much online rhetoric and reports on the subject is pro-athlete, and that is understandable. However, in your research and findings, do enough student-athletes and their parents realize the NCAA is NEVER going to pay athletes to play intercollegiate sports, only that legislation will grant them the opportunity to earn income off their likeness?

Isenberg: I tell people, I believe in amateur college sports. I played it. It’s called D3.

The NCAA has built its empire successfully arguing in legal cases and before state and Federal legislatures that college athletes are students, not employees. Therefore, they will never be W-2 employees of the universities and that whatever money they earn above beyond their scholarship will come from NIL opportunities. And that’s a reasonable compromise that should satisfy the many constituents and the various laws governing college sports, including Title IX.

Ballislife: When an athlete secures an endorsement or sponsorship deal, its terms will still be regulated by the organization that determines athletic eligibility, namely the NCAA. Do student-athletes understand it won’t be an unregulated free enterprise system? Colleges likely won’t permit student-athletes to benefit from their likeness with anything tied to or related to properties colleges own (such as uniforms) to promote, sell or negotiate an endorsement deal. Will this be the biggest obstacle to the student-athlete NIL movement flourishing?

Isenberg: I hope that college athletes and those who will play in the future are reading this or are talking to people who understand what’s going on in with NIL and won’t form unrealistic beliefs about how it will work.

Prior to the US DOJ warning the NCAA that it was not going far enough in what it was going to allow athletes to do in terms of monetizing NIL, the NCAA overplayed its hand. Not surprisingly, the NCAA and its members want to control as much as possible. And they want to exempt the biggest deals from NIL: media and shoe deals and any deals that might compete with existing sponsors.

Ballislife: A rational thought is, each school will have a compliance officer or someone on staff who monitors student-athletes’ eligibility and contractual items. Ramogi Huma, the executive director of the National College Players Association (NCPA), told Ballislife his group would be vehemently against the schools or the NCAA monitoring NIL issues because it is the group that hindered or oppressed basic NIL rights in the first place. Whom would be an ideal group to monitor this?

Isenberg: From the players’ perspective, the ideal group would be the players with the help of family, plus whomever else they want to consult with, including agents. That’s how it works for professional athletes, but the NCAA and its members will claim that they are protecting college athletes.

Absent an organization that exclusively represents college athletes, the final arbiters will be NCAA member schools, conferences and this third-party NIL agency that the NCAA has proposed.

I look forward to seeing how the NCAA’s NIL clearinghouse will operate and how the interests of college athletes will be protected. I am not optimistic, but anything less than college players college athletes receiving full representation, both collectively and individually, should viewed as unacceptable.

Ballislife: If limits on the negotiation terms are not the biggest obstacle in this NIL movement, what is? Other critical issues Ballislife foreshadows are boosters, or interested parties, securing endorsement deals that are non-existent or way above market value as an inducement, agents taking advantage of prominent student-athletes whose NIL has tremendous value, and student-athletes’ tax ramifications. What do you think?

Isenberg: I think critics of NIL, which there are many, are muddying the issues. I get that we don’t want NIL to be a factor in recruiting. At the same time, schools already engage in athletic arms’ races in order to attract the best talent. From my perspective, I have no problems with a booster’s company offering a recruit a future sponsorship, as long as it’s legitimate. And if that’s not the case, the NCAA can investigate.

Unfortunately, there will be some agents who take advantage of college athletes, just as some schools and coaches take advantage of college athletes right now. In the 1970s, sports agents rose to prominence because athletes were being exploited by professional teams and by sponsors. Sports agents—the competent, ethical ones—understand the marketplace and how to protect the legal and economic interests of their clients. Yes, it’s understandable why the NCAA and many old-school athletic directors would prefer to keep agents out of the collegiate business, but those interested in a more equitable system should welcome the presence of agents.

Ballislife: Unfortunately, some have dollar signs in their eyes when this NIL issue comes up, but lighting in a bottle (i.e. UCLA gymnastics) only strikes periodically and there is only one Notre Dame quarterback, Alabama running back or Zion Williamson. While some terms of the scholarship might be unfair, many student-athletes’ NIL is not worth more per year than their athletic scholarship is. What will it take for student-athletes to understand having basic rights to control their NIL doesn’t mean they’ll profit greatly, considering it takes time and effort to secure a sponsorship?

Isenberg: In the end, we spend a lot of time focused on NIL, which I believe we should for one simple reason: These are fundamental economic rights that have misappropriated by the NCAA and its members for many decades. NIL reform will give these rights to the rightful owners, which are the college athletes.

Ultimately, the marketplace will determine who has NIL value and who does not.

Obviously, there will, on the whole, be more opportunities for elite athletes participating in revenue-generating sports like basketball and football. But, there are plenty of non-athletes making good money as social media influencers, so having the platform that college athletes enjoy could be a significant advantage.

In the nineties, Gabrielle Reece was a teen model who went on to play volleyball at Florida State. (She stayed at FSU just two years, then left to pursue modeling full time, which turned out to be great move financially.)

Back then, college athletes were prohibited from earning athletically-related income. Because Reece was a highly-sought after model prior to entering college, she was allowed to continue doing that. Under current NCAA rules, if an athlete is “discovered” as a model or as an actor and it’s determined that it was because of his or her athletic fame, they are forced to make a terrible choice: continue playing NCAA sports or give that up in order to pursue these opportunities.

Ballislife: Many student-athletes and parents don’t realize an athletic scholarship is for only one year so it’s easy to imagine they won’t initially understand all the nuances of NIL. It would seem the best time to understand the nuances and limits is before accepting or signing the scholarship. However for many, just securing the scholarship takes plenty of time and effort and many don’t have the money upfront to hire an agent or advisor for this. What would be your recommendation so student-athletes negotiate the best terms for them when it comes to the scholarship agreement and the NIL limitations that the schools will enforce?

Isenberg: I highly recommend having these conversations prior to enrollment. Once an athlete signs the National Letter of Intent or accepts a scholarship, the leverage dramatically declines.

Before an athlete commits, coaches will be far more willing to make certain concessions especially if it’s the difference between landing a top prospect. Still, a coach’s ability to “wheel and deal” will likely be constrained by the institution and/or the Conference, but again, if an athlete has talent that a program covets, he or she has leverage. I would say, even prior to NIL going into effect, there’s nothing wrong with having these conversations and if the school agrees to certain things, make sure those promises get memorialized in writing.

On the other side, athletes and their families have little leverage to dictate what they currently get beyond an athletic scholarship, “full cost of attendance” stipends and possible multi year scholarships. The one time an elite athlete does have leverage is prior to signing with an NCAA institution. That’s when you want to put these issues on the table and determine what a school and head coach will likely allow and what will likely be prohibited.

Ballislife: The College Athlete Protection (CAP) Guarantee provided by the NCPA on its website (ncpanow.org) is a great resource and starting point to make sure student-athletes are in a situation that provides them protections and not just the school. What other measures or items should athletes and their parents be proactively studying or pursuing to be as informed as possible on their basic protections as collegiate athletes?

Isenberg: For those athletes who want to make good decisions around NIL, education will be crucial.

The NCAA and its members have many advantages over future and current college athletes, including the fact that they write and enforce the rules, have compliance staff and lawyers who ultimately serve the university. Athletes needs to understand how scholarships work and how to protect their rights.

I would say, think about best- and worst-case scenarios and how to handle various situations. The big question is, what might happen if you have an NIL opportunity, but your school and/or the NCAA third-party clearinghouse doesn’t approve? Right now, there’s a lot of questions that will get answered in the coming months as the Alston Supreme Court gets decided and we get clarity regarding what laws will be in effect and how the NCAA and member schools plan to comply.

ISENBERG’S CLOSING REMARKS ON NIL
My advice to athletes and their families regarding NIL is fairly straightforward: If it’s important or you think it may become important, then you should factor that in when you select a school.

Because we don’t actually know what the NIL laws will be or how it will translated into NCAA rules, for now my best NIL advice is:
1. Build a social media following
2. Pick a program you think will support your NIL goals
3. Focus on your sport and your academics because that’s how you earn an athletic scholarship which will, in turn, provide the biggest platform to monetize your NIL

Editor’s Note: Marc Isenberg is an athlete advocate and author of “Money Players” (the business of being a professional athlete). He will soon publish a booklet to help college athletes and their families better understand and take advantage of the opportunities NIL will create. For more information about this booklet or to contact Isenberg, send an email to: marc.isenberg@gmail.com

Ronnie Flores is the national Grassroots editor of Ballislife.com. He can be reached at ronnie@ballislife.com. Don’t forget to follow him on Twitter: @RonMFlores


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