The NIL Summit

It was just hosted in Atlanta.  David Hale’s summary is pretty spot on.

Another common refrain from many of the NIL Summit’s attendees was a reminder that this is all still new. For all the “what comes next” questions, there were very few answers. NIL has undoubtedly moved college sports away from traditional amateurism, but it’s still unclear whether it’s also a big step toward a pro model. While some experts theorized unionization and collective bargaining was the ultimate end point, few athletes seem to have given this much thought, and several attorneys and agents said the path to unionization would be incredibly difficult, suggesting instead that a group licensing model could be a better fit.

While school presidents and administrators have begged for federal NIL oversight, few in attendance in Atlanta believed that was forthcoming after a recent effort from Greg Sankey and George Kliavkoff to engage Congress resulted in no serious movement.

More likely, said several sources, was litigation that would more clearly define a framework for the marketplace. What happens when an athlete who unwittingly signed over NIL rights to a collective wants out of that contract? What happens when a company decides an athlete hasn’t performed well enough to warrant payment? What happens when the IRS comes calling because they’re not sure why a sports collective needs nonprofit status? The results of potential lawsuits might end up defining what NIL looks like down the road.

No shit. It’s way too early in the process to start drawing any hard conclusions about where this is headed.

By the way, this is what caused Mark Emmert to spend millions on lawyers:

The one constant refrain on money, however, was that much of what has been reported in the media is widely out of step with reality. Yes, some athletes have found deals into seven figures, but that’s incredibly rare. The median return for a social media post, for example, might be as little as $20, while even big-name athletes with large followings rarely land deals in excess of $20,000.

Kinda seems wasteful, but what do I know?

No love lost

Remember how bad the blood got between Alabama and Tennessee when Fulmer was still tromping on the sidelines in Knoxville?  At one point, Fulmer was served with a subpoena in Hoover when he was attending SEC Media Days.

Boys, I’m starting to think we’ve got a worthy successor to that on our hands.

On Monday, Texas A&M declined comment on a report of an email Bjork sent to SEC Commissioner Greg Sankey, obtained by On3.com, the morning after Nick Saban’s controversial comments that A&M had “bought every player” in its top-rated recruiting class through NIL agreements. Co-signed by TAMU President M. Katherine Banks, the letter to the SEC office called for sanctions on Saban to include not only a public apology, but for consideration of a suspension and a fine as well.

The Tuscaloosa News obtained Bjork’s May 19 email, and while the body of the letter was noteworthy, the timestamp on it was downright hard to believe: 10:29 a.m. Here’s your sequencing from College Station that day:

10 a.m.: Fisher’s press conference begins.

10:19 a.m.: Fisher ends his remarks after scorching the most Earth humanly possible in 19 minutes.

10:29 a.m.: Bjork emails letter to Sankey.

Bjork had just heard his coach call Saban a narcissist with a God complex, suggested he should’ve been slapped as a child, and repeatedly called his ethics into question, while offering nothing in the way of specifics. Then he sends an email complaining about Saban’s comments? That’s a little rich. His email further complained that Saban didn’t cite any facts to support his statement, right after Fisher offered none, either, in leveling vague allegations of his own.

You’ve got to think there’s some enraged member of one of those two fan bases ready to take things to the next step, don’t you?  After all, that’s what you get when It Just Means More.  I just can’t decide who serves whom first.

A day late and a dollar short, again

This isn’t about college football, but you can bet the suits running the NCAA are shitting bricks about it.

The Department of Justice, making a request on behalf of three former minor league teams suing Major League Baseball after the league stripped them of their affiliation, asked a federal court Wednesday to limit the antitrust exemption given to MLB.

The three teams suing MLB were among 43 that lost their affiliation when the league downsized the minors to 120 teams in 2020.

MLB has asked that the lawsuit be dismissed, citing the antitrust exemption. In the filing with the U.S. District Court in New York, the Justice Department asked the court to “define the exemption narrowly.”

… In a Supreme Court ruling in 2021, Justice Neil Gorsuch questioned the legal status of baseball’s antitrust exemption, citing the changes in the market since the initial ruling was made in 1922. The Supreme Court has said that baseball wasn’t subject to antitrust rules because it was a series of exhibitions and not interstate commerce.

I can’t think of a more deserving ending to the NCAA’s fruitless pursuit of amateurism, now in the NIL denial stage, than to watch their hopes for a broad Congressional antitrust exemption get nuked by the courts.  After spending millions more defending it, of course.  It’s the way they roll.

A “novel issue” goes to court

For those of you who wondered last week why Louisiana would need to pass a law that would exempt NIL deals from that state’s open records requirements, an answer may be unfolding locally.

The hot topic in collegiate sports known as NIL — for name, image and likeness — was debated Friday in the Oconee County Courthouse.

Superior Court Judge Eric Norris listened as David Hudson, representing the Athens Banner-Herald, and Edward Tolley, the attorney for the University of Georgia Athletic Association, argued about whether the Athletic Association should release documents through the open records act on UGA athletes with NIL contracts.

You can probably guess the arguments each side raises.

Tolley argued student-athletes have a right to privacy and these NIL contracts are made with an independent third party and not the university. The Athens lawyer likened it to the lottery, where a winner can choose to allow his identity to be known or kept secret.

The student athletes are allowed in the negotiations for an NIL to use a “professional representative, athletic agent or attorney,” according to state code.

Hudson agreed the Athletic Association was a private entity, but because it maintains or receives documents on behalf of a public agency, that information is subject to the open records act.

Hudson also cited previous court ruling involving a Macon Telegraph suit that maintains the Athletic Association is subject to the open records act.

Not sure I buy Tolley’s lottery analogy, but what I’m really curious about is whether the suit winds up shedding any light on how much involvement the program has with its players’ NIL deals.

Morehead to the rescue

From Mike Griffith’s slobbering interview with UGA’s president about the NIL “mess” (Morehead’s term, not mine):

School was back in session when the 65-year-old law professor was chased down by media members in a hotel hallway Wednesday to answer the question as to how the NCAA could govern NIL with the threat of antitrust lawsuits.

“You’re making an assumption that whatever guard rails created are ones that wouldn’t survive a litigation review,” Morehead said. “I’m also a lawyer, and I think we can devise rules that have the potential of surviving scrutiny…

Well, shit, Jere.  That’s all you had to say!  It’s a shame the NCAA blew through millions on attorney’s fees fighting O’Bannon and Alston instead of consulting with you from the get-go.

“Screw it! We know we are going to get sued anyway.”

I’m wondering if, when it comes to the NCAA and NIL, we’ve come full circle.  What I mean by that is illustrated by this quote:

But will the conversations with prospects or prospects’ agents really stop? “Somebody is going to have to be made an example of,” says Eddie Rojas, CEO of the Gator Collective. “There are people out there who are straight up ignoring the rules.”

When you’ve got one guy running a collective pointing a finger at others, you know somebody’s out there crossing a red line.  Maybe it’s time for the NCAA to consult with an antitrust lawyer who knows their business and make an example of somebody doing something truly egregious.  Seriously, what have they got to lose?  The states aren’t coming to their rescue.  Neither is Congress.

“At a certain point, the NCAA is going to have to face it,” says Gabe Feldman, a sports law professor at Tulane who’s been integral in NIL matters. “Either the NCAA is going to defend its current model or it is going to have to get protection from Congress so it no longer has to defend its current model. Or its model will be sued to smithereens and it will no longer exist.”

The irony is thick.  After spending a decade wasting millions fighting a losing battle in the courts, now that the organization is faced with what truly looks like an existential crisis, is it going to sit on its hands?  This being the NCAA we’re talking about, probably.

When lawyers aren’t amateurs, amateurism ain’t cheap.

Turns out you can put a price tag on freedom.

NCAA's new federal tax records show it had $52.5 million in outside legal costs in FY21 (when appeal of Alston to SCOTUS occurred). That's down about $15M from FY20. But over past 7 fiscal years, NCAA has shown $304.5M in outside legal expenses and $69.1M in legal-cost recoveries https://t.co/4BD3J8CcSu

— Steve Berkowitz (@ByBerkowitz) May 17, 2022

Spending over 300 million dollars to wind up getting your ass handed to you by the Supreme Court of the United States sounds like it could be the basis for one of those Mastercard “Priceless” ads.  I kid, but it’s appalling to think what that money could have been used for if the NCAA didn’t have its head inserted so far up its ass.

Check out the big brain on Gary.

Tell me you haven’t paid attention to the Alston decision without telling me you haven’t paid attention to the Alston decision.

“NIL … is a good thing. And actually, that part of it is going well on our campus,” Barta told broadcaster Gary Dolphin on the university’s “Fight for Iowa” podcast that was released Thursday. “But what has happened is it is now being used for recruiting inducements. That was never intended. It still is against the rules, but it’s blatantly being abused.”

Barta met with other NCAA powerbrokers recently in Scottsdale, Arizona, to work on charting the course for college athletics.

Repealing the one-time transfer permit wouldn’t affect incoming freshmen’s ability to score a big NIL deal. But, in Barta’s opinion, doing so would help stabilize the wild roster movement that is taking place on a lot of major-college campuses.

“You don’t have to lose your scholarship. But you must sit out a year. Because we can control that,” Barta said. “And that I think would slow down the (NIL) deals, because a booster isn’t going to offer a student-athlete a big sum of money if they know they have to sit out a year.”

Congratulations, genius.  You’re taking notes on a criminal conspiracy describing a textbook antitrust violation.  Lawyers across the country are shaking their heads.

This guy is the AD at a P5 university and once served as the front man for the CFP selection committee.  Jesus, where do they find these people?

Now go away or I shall sue you a second time.

Boy, this is cocky ($$).

The news coming out of last week’s Big Ten, Big 12 and Pac-12 spring meetings was the NCAA’s impending attempt to crack down on schools’ boosters using NIL payments to land recruits…

Sports agent Russell Smith, whose Utah-based firm Oncoor Athlete Marketing represents around 80 college athletes, had this reaction: “I think it’s adorable that the NCAA is acting as if they’re going to crack down on anything.”

“Adorable”?  That’s “your mother smells of elderberries”-level smack talk.  Not that the NCAA hasn’t earned it.

“We let things get out of hand.”

Man, it was all the way back to *** checks notes *** yesterday when I posted this observation:

If there’s one thing that really surprises me about the new landscape, it’s how passive head coaches, surely among the world’s greatest control freaks, have been about letting boosters run rampant.

Well, lookee here.

College leaders are gearing up to issue a warning to hundreds of wealthy boosters who are using name, image and likeness (NIL) ventures to involve themselves in recruiting.

University administrators, part of a task force to review NIL, are finalizing additional guidelines that are expected to clarify that boosters and booster-led collectives are prohibited from involvement in recruiting, multiple sources tell Sports Illustrated. The guidelines will provide more guidance to member schools on what many administrators say are NIL-disguised “pay for play” deals orchestrated by donors to induce prospects, recruit players off other college teams and retain their own athletes.

The new directives will highlight existing NCAA bylaws that outlaw boosters from participating in recruiting, reminding member schools of guardrails that, while in place for years, have been bent and broken during the first 10 months of the NIL era, officials say. Under a long-held NCAA rule, boosters are a representative arm of an athletic department and are not supposed to associate with or persuade prospects.

The guidelines, still in draft form, outline that booster-backed collectives should be prohibited from associating with high school prospects and college transfers, potentially opening the door for contentious legal challenges between the association and booster groups.

My first thought upon hearing about that was to laugh.  The NCAA wants to wade back into treacherous legal waters over player compensation?  Talk about your definition of insanity.

Then I started thinking about it a little more.  Maybe there’s a way to come up with an approach that has some enforceable teeth to it.  The trick would be to focus on punishing boosters, not players.  And that kind of sounds like this:

The new directives will highlight existing NCAA bylaws that outlaw boosters from participating in recruiting, reminding member schools of guardrails that, while in place for years, have been bent and broken during the first 10 months of the NIL era, officials say. Under a long-held NCAA rule, boosters are a representative arm of an athletic department and are not supposed to associate with or persuade prospects.

The guidelines, still in draft form, outline that booster-backed collectives should be prohibited from associating with high school prospects and college transfers, potentially opening the door for contentious legal challenges between the association and booster groups.

Schools that do not control their donors’ spending could be found to have violated NCAA rules and will be sanctioned, according to the document.

Spending eight million dollars on a recruit who will never throw a pass in anger in a playoff game because his team is banned from it seems like a major waste of money, even for a booster who sincerely believes his shit doesn’t stink.  But, even if the NCAA doesn’t punish the recruit, do boosters have enough legal juice to thwart enforcement?

Any NCAA enforcement will challenge state NIL laws and risk a bevy of lawsuits from the wealthy collectives and individual donors, experts say.

“Either you let everyone do it or you enforce the rule,” Florida-based sports attorney Darren Heitner says. “In essence, what’s happening or will happen is those who are willing to violate the rule will be rewarded if nothing is done about it. Don’t have a rule if you’re not willing to enforce it. This isn’t a matter of them not being able to do something. But will it further open itself up to more litigation, litigation it will probably lose?”

Sounds like we’re going to find out.  Boosters suing their schools certainly has a weird vibe to it, but so does this:

“I have some coaches call me and say, ‘I don’t know what to do about this booster because he’s offering all these kids NIL money and I don’t even want the kid’,'” shared Todd Berry, executive director of the American Football Coaches Association.

The NCAA had best find better lawyers than they had the last time they were in court.