“I’m a little biased, but I believe this is going to give coach (Kirby) Smart every bit of help he needs to bring home a national championship.” — Brian Kemp
As my readers know, I’m pro-NIL compensation for college athletes as an issue of fundamental fairness. That being said, while Kemp gave lip service to that consideration at yesterday’s signing (“College football is so big now. The finances are so big. The players have a lot at risk. You’ve got other sports where people can go pro right out of high school. I think this is the right step at the right time in the right direction to try to continue to protect the student-athlete but also give the athletes the benefit of what others are getting across the sports world.”), make no mistake about it, the driving force behind the legislation’s passage was to keep Georgia football from falling behind in recruiting versus programs in states where NIL legislation has already passed.
All you have to do is look at yesterday’s setting where Kemp signed HB 617 to get the message.
All of which begs the question as to why the legislature passed and Kemp signed into law a bill that contains a provision that will surely muddy the message. I’m referring to the now infamous pooling arrangement.
In English, here’s what we’ve got:
Colleges in the Peach State can elect to require their players (on all of their teams) to share up to 75% of compensation received for the use of their name, image, or likeness—including through endorsements, sponsored business arrangements and influencer deals on social media. The forced “sharing” would occur pursuant to what House Bill 617 terms a “pooling arrangement,” with the shared compensation directed to “a fund for the benefit of individuals previously enrolled as student athletes in the same [college].”
The fund would be fashioned as an escrow account controlled by the athletic director. After they graduate (or after 12 months pass from leaving early), former players could draw pro rata shares of the fund’s pooled contributions “based on the number of months the individual was a student athlete.”
News of the provision swept through social media and regular media like a storm. Some of the takes were flat out misleading, like this one.
One of the most notable distinctions in HB 617 is that it calls for student-athletes to deposit funds into an escrow account and wait to withdraw until they leave school. The bill also includes a revenue-sharing component, which sponsors say is intended to help curtail team dysfunction, but the provision has drawn criticism since it allows schools to take up to 75% of an athlete’s earnings for redistribution.
But almost as damaging were ones like this Yahoo! Sports header: “New Georgia law legalizing college athlete endorsements also allows schools to take athletes’ money”. “Allows” is doing some heavy lifting there, but it’s not an inaccurate description. And that, I think, is going to pose a problem for Kirby Smart and his staff on the recruiting trail this year.
As McCann notes, the pooling arrangement is unique to Georgia. What that means is other states with NIL legislation haven’t created a framework that allows their schools to retain most of a player’s earnings and distribute those to other student-athletes. Which in turn means that coaches in states like Alabama and Florida are about to engage in some serious shit talking with recruits about how, unlike in Georgia, their programs won’t be stealing money from them.
Now, sure, Georgia’s compliance office and Jere Morehead ran away from the pooling arrangement about as fast as they could. But as long as the law is on the books in its present form, rival coaches can present all the faux concern they like — hey, you never know at Georgia, right? — and that will leave Georgia coaches having to explain the situation. As the old saying goes, when you’re explaining, you’re losing.
The real puzzle to me is why anyone thought this was a good idea in the first place. Not only is it a scab that will be picked at endlessly on the recruiting trail, it’s an administrative nightmare for an athletic department to manage. The school has to manage its players’ contracts, collect the money from a variety of sources, construct a database of all student-athletes who played sports, as well as the time frame for each of them, track the twelve-month period before anyone is eligible for payment and then cut checks. Beyond that, because the school would insert itself into the payment process, it would have to manage things in a manner that doesn’t run afoul of federal regulations like Title IX, which is why HB 617 requires that schools can’t share or distribute funds in ways that discriminate on the basis of race, gender or other protected demographic traits.
Quite simply, who needs the aggravation?
I can’t figure that out, nor can I figure out why the language was added in the first place. If you explore the bill’s history in the legislature, it comes out of the House as a fairly anodyne product, without any unique restrictions. However, once it makes it way to the Senate, that changes. The pooling arrangement is added to the bill’s language, first with a 50% cap, and then increasing that to 75%, which is how the final version reads.
The Senate amendments were both introduced by Sen. Bill Cowsert (R-Athens), one of the bill’s sponsors. Note the area he represents, which raises the question as to what sort of input UGA had behind the language being added. And why. The only comment I was able to find from Cowsert about the law yesterday was this:
“I’m actually concerned about the potential for folks to cross the line, going from a supporter to using someone to promote their products and becoming a booster,” Cowsert told Atlanta Business Chronicle. “We have to be very careful that this isn’t used inappropriately by businesses agreeing to essentially pay some for their NIL when they really want to persuade someone to come to the University of Georgia.”
Is the point to the pooling arrangement to lessen the incentive for a booster to cross the line? I’ve got no idea, but in any case, it doesn’t matter because Georgia has already taken the pooling arrangement off the table. The kindest thing I can say about the drafting is that it appears to be working at cross-purposes with itself, but I suspect that will be of small comfort to Kirby Smart when he sits down with a recruit. (Then again, how likely is it that Smart had no idea of the bill’s language before it was signed?)
Maybe I’m reading too much into all this, but it sure seems like an invitation to score some easy negative recruiting points. We’ll see how it plays out, but from where I sit right now, I expect Georgia hopes for a federal preemption of HB 617 to eliminate the chatter or, in the absence of that, a trip back to the General Assembly next year to amend the law.
UPDATE: I missed this quote from Cowsert at the end of Weiszer’s piece from yesterday.
Cowsert said of the pooling provision: “It’s not fair for just the skill players to take all the money, otherwise why is somebody going to block for you?”
There you go. Oy.