DALLAS — It started with a series of direct messages to a handful of players. The proposed deal was a simple one: a one-time, promotional transaction. Post to Instagram for Live Nation about a Jonas Brothers concert coming to town and get a couple hundred bucks in return. It was the type of scenario that would’ve been a nightmare for athletic departments before July 1, 2021.
But after?
“We told them, OK, just screenshot the direct message, make that your disclosure and upload to that our system,” said Kyle Conder, the executive senior associate athletic director for SMU and a longtime director of compliance for the school.
Simple and legal, thanks to the most transformative change in college athletics since Title IX.
On Friday, the name, image and likeness (NIL) era in college athletics will turn one year old. It took a long time to get to an existence where players, competing in a money-printing venture like college athletics, could see a little bit of that profit, too. It was a reality that excited many, scared others, and ultimately brought an end to the NCAA’s ideal version of amateurism.
It’s played out in different ways.
Sam Estrada, a goalkeeper for the SMU women’s soccer team, signed a $10,000 NIL deal with Sam’s Club to be one of their brand ambassadors. A pre-requisite for the position: having the name Sam. Quinn Ewers, a former star quarterback at Southlake (Texas) Carroll, left high school a year early so he could cash in on over $1 million worth of NIL deals. North Carolina guard Deja Kelly, a former state champion at Duncanville, has signed multiple NIL deals, including one with Beats by Dre.
The NIL market, according to a recent report from Bloomberg, is on pace to be worth more than $500 million after its first year. College athletes fought for years to get paid, and in the first year they did.
For those who supported a way to pay players, that was always the intended hope. But in the first year of NIL another avenue has formed: a veiled, not-so-secret way for some groups to use NIL as a medium to pay players and convince them to come to their school. A quid-pro-quo inducement strategy that, without uniform rules, is hard to enforce against, even when reports of seven-figure salaries for high school recruits emerge, and companies you never heard of announcing deals with players transferring to their school.
Recently, the problematic nature of potential pay-for-play entered the spotlight when Alabama football coach Nick Saban accused Texas A&M and head coach Jimbo Fisher of purchasing their recent top-ranked recruiting class. The grapevine is filled with many other tales.
The two avenues are examples of where many expected the NIL era to bring college athletics and where others feared. Now many are asking: where does college athletics go from here?
Lacking uniformity
For years, the emergence of NIL had operated as a question of when, not if.
The first crack in amateurism came in 2014 with the O’Bannon v. NCAA case. A District Judge found that the NCAA’s bylaws were a violation of antitrust law and a restriction of trade. Seven years later, on June 21, 2021, the United States Supreme Court ruled unanimously in NCAA v. Alston against the NCAA, eliminating any rule against restricting players getting paid.
In response, the NCAA deferred to others on how the imminent NIL era would be operated. States, like Texas, created NIL bills and passed legislation. A total of 29 states have those or will soon.
In those states without NIL legislation, ruling and enforcement would be up to the respective schools and conferences.
With states having differing rules, restrictions and freedoms, the landscape of college athletics has lacked uniformity in terms of NIL. It still does a year later.
One potential solution is catch-all federal legislation, though it remains a challenge. There have been multiple bills, bipartisan and not, floated into ether but all failed to catch any real momentum.
“The most important thing we have to do when considering name, image and likeness legislation is make sure that student-athletes are treated fairly. This is an area where folks are asking Congress to intervene to give schools, coaches and athletes clarity, and there is bipartisan support,” U.S. Rep. Colin Allred, a Democrat and a former college football player at Baylor, wrote in a statement to The Dallas Morning News. “The reality is, we need a national standard that allows players to profit off the use of their name, image or likeness, like any other person. I will keep working to find common ground to get NIL legislation signed into law.”
Experts figure that federal NIL legislation isn’t imminent. And as the first year of NIL comes to a close, some states are also changing their NIL legislation.
One reason why is the emergence of collectives, the name given for groups of donors who collect money for NIL deals at respective schools.
According to Opendorse, a technology provider for athlete marketing, 35% of Division I NIL compensation tracked by the company through May 31 had come via donor-driven collectives. Division I athletes had received compensation from collectives at an average of more than $1,000 per deal.
Sam Weber, a spokesperson for Opendorse, said collectives have quickly developed into the single largest compensation source for student athletes.
“That is an area, going into July 1 last year, I don’t think many in the space considered,” Weber said regarding collectives.
“It’s been kind of amazing to watch how quickly those have been organized and initiated across the country.”
Because of the emergence, some states have started to amend their NIL legislation. Some want to limit the impact of collectives, while others — like a proposed amendment in Louisiana, for example — want to empower collectives and their connection to respected schools.
While also being the biggest driver of NIL deals, collectives have also become the biggest target for pay-for-play blame. In May, the NCAA issued updated NIL guidance to schools with a particular emphasis on regulating and investigating collectives that could potentially use NIL for recruiting. The guidance was received without much acknowledgment.
Outgoing Big 12 commissioner Bob Bowlsby told Sports Illustrated the NCAA guidance was a “feckless” act without any potential for enforcement.
To many, it’s been that way the entire first year of NIL. And in conjunction with college athletes having the freedom to transfer one time without penalty, experts see an unintended version of college free agency.
“The challenge with that is, at the professional level, there are guardrails and rules in place to manage free agency,” said attorney and NIL expert Luke Fedlam, a former college athlete himself. “But because this is all new and happening so quickly there really aren’t any significant guardrails to help protect this notion of free agency at the college level.”
And those guardrails might not even happen in the NIL space.
“I think we’re in a reflective place,” Maddie Salamone, an attorney and athlete advocate, said about the state of NIL. “A lot of people are looking back and saying ‘OK, here’s what worked and here’s what didn’t.’ Some are more comfortable with what’s going on than others, but I think the transfer portal has certainly got the most attention and where there’s most likely to be some changes.”
What’s next for NIL?
Earlier this month in Atlanta, INFLCR and SANIL, two NIL companies, put on the inaugural “NIL Summit” in Atlanta. There were 72 speakers from different NIL-related backgrounds aimed at discussing the state of NIL.
Fedlam was one of those speakers. And a big point of conversation at the summit was not only about how the first year of the NIL era had gone, but where it’s going.
“A significant thread of the conversation was we don’t know where we’re going to be going into the future,” Fedlam said, “because even thinking about Congress acting is a really complex situation.”
That, Fedlam said, is the most talked about point regarding NIL. It was the unintended avenue. The intended avenue, he said, drawls less discourse but doesn’t pale in significance.
Conder has seen it at SMU. He’s seen Ra’Sun Kazadi, a defensive back on the football team, earn money on artwork that he’s made for years. Kazadi couldn’t previously profit off that under NCAA rules. Conder also saw plenty of other deals come through compliance within the SMU athletic department, including that initial one: promotion on Instagram for a concert that probably didn’t need it.
Looking back, he laughs.
“I think seeing examples like that unfold as this thing as this began to percolate was interesting,” he said, “because I think there was a little bit of us hurtling into the unknown.”
Heading into the second year of NIL, there’s still an unknown regarding what comes next.
