Exploring the ever-changing ABCs of NIL in college athletics
Perhaps there’s only thing that makes a college football fan’s head hurt more these days than the lack of absolutes about how seismically name, image and likeness might change the sport they love forever.
Taht being another reference comparing NIL to not being able to put toothpaste back in the tube.
Which may not ultimately even be metaphorically accurate.
In Notre Dame’s lane, happily ever after doesn’t mean a complete reversal anyway. Roughly a month and a half before NIL’s infusion into college sports hits its first anniversary, it’s about redrawing the line between outright play-for-pay and the intended applications of NIL.
To help explore the origins of how we got here, the challenges of reining in or redefining the gray area, and what’s possible moving forward, Inside ND Sports enlisted Michael McCann to help navigate those issues.
Per his bio at Sportico, McCann is a legal analyst and senior sports legal reporter at Sportico. He served in a similar capacity for Sports Illustrated from 2007 to 2020, prior to joining Sportico.
Among his other roles, McCann is also an attorney and Professor of Law at the University of New Hampshire’s Franklin Pierce School of Law, where he is also Director of the Sports and Entertainment Law Institute.
And he knows NIL backwards and forwards.
Q: Is there an off ramp to NIL evolving into something fair and equitable, where administrators and student-athletes and lawyers and lawmakers can all live with it and agree upon the concept of NIL? Does that possibility even exist out there anymore?
McCann: “It is possible, but there are so many different constituencies that it’s going to be challenging for all involved at this point to do that. Really, the time to do that was before. Before last July. It was before the state NIL statutes went into effect, because they’re there. And they’re not going away.
“To the extent the NCAA prohibits activities that those laws allow, it creates a conflict of law. The NCAA rules are going to be violating a state statute. If you tell a school to do it this way, the school would be violating a statute.
“So the vehicle to do what the NCAA probably wants is for Congress to pass a law that has safeguards in place that has a variety of provisions. 'Guardrails' was the term the NCAA used — I don’t think it was very popular. But something to the extent of an NIL with some control by the schools, conferences and the NCAA while ensuring that athletes could still get paid.
“Congress could pass something like that. And when I testified before the Senate (in June), I said that’s really the way to go. Don’t wait, because if you wait, you get what you’ve got today. The challenge now is it’s an election year. It’s not clear that there are enough Republicans and Democrats that would do what the NCAA wants.
“A number of them want broader reforms that go well beyond NIL. So it’s possible. I just think in a lot of ways the time to do this was before.”
Q: In terms of the Democrats and Republicans both pushing for reforms in college athletics beyond fixing NIL, are those demands similar on each side of the political aisle?
McCann: “I’m not sure about that. You look at the Democratic side with (New Jersey) Sen. (Cory) Booker, (Connecticut) Sen. (Chris) Murphy, they’re looking for health-care rights for athletes after they leave school. They’re looking for revenue-sharing. That was a component of a bill introduced by Sen. Booker.
“I think the Republicans and (Tennessee) Sen. (Marsha) Blackburn, for instance, have questions about how the NCAA administrates college sports and whether or not it’s equitable in terms of how it treats teams and athletes.
“There’s probably overlap, but I think we’re dealing with too many legal ingredients. It’s like NIL and 12 other things. So it’s going to be tough to circle around some policies.
“If it’s just a federal NIL bill — if that’s all there is and they voted on that — I think that would pass. And that’s because we’ve seen it pass. We've seen both Republicans and Democrats at the state level overwhelmingly pass that.
“The challenge is others want other things, and it’s not clear that a bill will be introduced unless it has some of those other things.”
Q: The NCAA is now trying to push back on perceived NIL abuses, and there’s a task force comprising university leaders looking to do the same. What are the chances either of these components would have enough bite to make a difference?
McCann: “The guidance that the NCAA issued really reiterates what the rules already are. It’s saying NIL can’t be used as a veil over pay-for-play. And that’s not new. In fact, state laws don’t allow pay-for-play. To me, it’s great that they said it, but the question is: Will they enforce it?
“Until a school that is using NIL as a vehicle for pay-for-play is actually punished — or even identified … There have been schools investigated — Miami and BYU — but the NCAA has not said a school has broken a rule. So I think there is widespread suspicion that some schools are doing that.
“If it’s just going to be, ‘Let’s announce a rule,’ and it’s not enforced, I don’t think it does anything. So to me, I think it’s going to depend on whether or not the NCAA enforces its own rules.”
Q: If they do enforce the rules and it starts a new chain of litigation, how solid of legal ground is the NCAA on to prevail legally?
McCann: “The question is going to be how egregious is pay-for-play being masked as NIL? And so if it’s clear that the school or some group associated with the school is labeling things as NIL activity that are really pay-for-play — you know, come to this school and I’ll pay you an enormous amount of money, and we’ll call it NIL — if there’s evidence of that, I think the NCAA would be in its purview to enforce its rules.
“That’s not NIL, as NIL is understood. So an NIL statute probably wouldn’t be violated. And in that case, I think the NCAA is in a good place — although they may be sued for that. A lot of people point to the Alston case (U.S. Supreme Court, NCAA v. Alston).
“That was like a blatant restriction on compensation — compensation for academic-related expenses. That’s a really different scenario than the NCAA enforcing a longstanding rule regarding athletics. People keep citing Alston and antitrust, antitrust. That's too broad of a brush.
“You really have to go more granular and look at what the court said in Alston, which was ‘OK, you tell us this is about the student-athlete: How are you not letting them get money for being a student?’ Very different from enforcing longstanding rules of college athletes not being paid for play.”
Q: There are people who have speculated that if the NCAA isn’t successful in pushing back, that this will somehow evolve into college athletes being classified as employees and everything that comes with that. Remember the Northwestern situation with the National Labor Relations Board a few years ago. Could NIL go down that alley at some point?
McCann: “I see that as a possibility regardless of NIL. I don’t think the two are connected, not directly. And I say that, because there’s already a case — Johnson v. NCAA, which is in Pennsylvania and now at the Federal Appeals level — where the students say, ‘We are employees under the Fair Labor Standards Act.’
“If that’s true, it means they would be eligible, in all likelihood, for minimum wage and overtime pay. So that’s not NIL-contingent at all. There are also petitions before the NLRB by groups — not athletes, but groups purporting to represent athletes — that have been filed and will play out over the next year or two.
“So I think those things get conflated, but in the law they’re not. And whether college athletes are employees is going to be a question that courts and federal agencies grapple with regardless of NIL”.
Q: If they let you be the 'King of fixing NIL', what groups of people would you invite to accomplish your mission? I know you wouldn’t want it to be judges, because you’ve said they’re ruling in an area in which they have little or no expertise.
McCann: “I think you have to have conference leaders. I think you have to have athletes. Some group of athletes who represent different teams and different sports. They have to be part of the decision-making.
“Traditionally, the NCAA and leadership in college sports has really been top-down and not certainly incorporating athlete views to the extent that they ought to have been.
“I think that needs to change if these issues are going to be resolved, not only from a pragmatic level but also from a legal level, where a key constituency is denied a voice. That’s just not going to go over well with courts.
“So conference leaders, athletes, former athletes. Probably throw some lawyers in there to make sure that everything is kosher. Probably have doctors in there, to make sure that the health issues are — whatever rule changes occur, they have consequences for play. So having the health-care community as part of that, I think, is also important.
“And lawmakers. There are some lawmakers from both parties who have been leaders on this. Having them involved, both from the federal and state level, makes sense. It’s a good topic, because it’s not Republican vs. Democrat. It’s actually something with some common ground. That could be helpful.
“Those are just some. I would say part of the solution is going to involve conference autonomy. This is something that the Supreme Court told them to do. In Alston, they said conferences could do their own thing.
"It could be that amateurism in the Southeastern Conference is very different from amateurism in a small league. Doesn’t have to be the same across the country.
“I think we’ve seen that team revenues, that team profiles are so different that putting them all in the same box doesn’t make sense anymore. Maybe it did years ago, but it seems to make less sense now. I think rather than trying to figure out one set of rules for everyone, focus more on a conference-by-conference approach.
“And that’s actually much better in terms of the law, because the Supreme Court has said conferences, when acting on their own, can do what they want.”
Q: Circling back to the premise that the NCAA should have gotten ahead of this and done something before it got out of hand, why didn’t they? What were they afraid of?
McCann: “I think part of it is inertia. They’ve latched onto rules for decades. And it’s hard to change that. People in power are accustomed to them. I think there’s a natural tendency to anchor to what’s been in place. I don’t think that’s unique to the NCAA.
“I think all institutions are like that. People are like that. So, that was an element.
“Part of it to me goes back to the O’Bannon case (O’Bannon v. NCAA), where they (the NCAA) had a chance to change rules. They could have settled with (Ed) O’Bannon. O’Bannon was more than open to settle. EA Sports settled quickly, and the NCAA went to trial and lost.
“I think the NCAA’s decision to be litigious rather than amenable to discussion, to change was a strategic mistake that they haven’t corrected — and they may not be able to correct.
“So I think those are some reasons. (NCAA president) Mark Emmert is right. He has said, ‘This is a membership organization. This is what the membership wanted to do.’ That’s probably right, but maybe a different leader might have been more outspoken to say, ‘Look, I know you guys may want to do that, but a better path might be addressing this before it goes too far.’
“And really once those state NIL statutes went into effect, that to me was the time to change rules. And they didn’t. They went to Congress hoping that Congress would pass a law.
“There were, what, 10 NIL bills. There were hearings. I was in one of the hearings. None of the bills introduced was ever voted on. So that doesn’t seem like the best playbook. To rely on Congress for reform rather than the organization itself doesn’t seem like a wise move.”
Q: Why didn’t the bills move? Was it because they weren’t prioritized?
McCann: “Maybe the NCAA didn’t anticipate how many other issues Congress would want to address along with NIL. Maybe that’s what threw those bills off route.”
Q: Is NIL necessarily going to be a domino that starts a chain reaction which will change college sports into something we don’t recognize or no longer can embrace? Or, could it lead to something better?
McCann: “I think college sports are not going away. They’re so popular. Look, we’ve had NIL for nearly a year. Ratings aren’t down. Attendance isn’t down. Fandom isn’t down. None of the metrics suggest college athletes being able to sign endorsement deals or be paid to tweet something or promote something in Instagram, as far as I can tell, there’s no data suggesting it hurts the product.
“If anything, I think people think, ‘Yeah, they should get something.’ I think NIL has shown it hasn’t hurt consumer interest in college sports. Are there issues with delineating NIL from pay-for-play? Sure. And it’s on the NCAA to enforce its own rules. It’s not on Congress.
“If they’re so worried about being sued, then come up with a policy that can withstand legal scrutiny. It’s actually really hard to win an antitrust case. Alston was a rule that you can’t be paid for academic stuff. That's not a reasonable rule.
“Whereas a rule that says you can’t be paid for play and call it NIL, I have a feeling a court would react very differently to that.”
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