Proactive v. Reactive: Challenging Athletic Departments to Recognize the Realities that the Name, Image, and Likeness Market Introduce.

This article is Part (II) of a four-part series that will provide recommendations for various parties impacted by the Name, Image, and Likeness market.

Part (I) – NIL: Not [necessarily] incorporated in Legislation. What Student-Athletes Should Know.

Part (III) – Suggestions for Prospective Student-Athletes on Balancing NIL Opportunities while Being Recruited

Part (IV) – Evaluating How NIL Legislation Applies to International Student-Athletes

Primary Purpose

Etched in our everyday online literature are articles upon articles related to Name, Image, and Likeness (NIL). While it is encouraging to see student-athletes earning compensation in this new market, we must not forget about one if its primary players: college and university athletic departments.  With no national governing set of bylaws, these NCAA affiliated departments are left scratching their heads wondering exactly how to keep their programs and student-athletes safe and eligible.

The following recommendations are intended to spark the conversation between athletic department staff and administrators to ensure their programs are adapting to present and foreseeable changes. Of course, state laws, and school policies will differ, therefore the recommendations are written broadly to encompass several of the more sweeping issues faced when existing in the NIL market.

Five Recommendations

1. Develop Channel for Communication
   • Staff
     • Educate the staff about the realities your school faces with respect to NIL legislation.
     • Identify the person within the department for staff to direct their inquiries about NIL.
     • Make it clear that no staff member can induce prospective student-athletes or current student-athletes with a “pay-for-play” contract.
     • Program point of refence. To encourage uniformity and continuity, it is important to identify a member of each program as point of contact for both the department and student-athletes with NIL questions, comments, or concerns.
   • Students
     • Identify to prospective and current student-athletes the program and department points of contact for NIL inquiries.
       • A consistent point of reference for current and prospective student-athletes is important because that person will provide consistent guidance for NIL.
       • This market is ever changing, and impossible to get a firm grip upon. Thus, try to avoid conflicting guidance with consistent point of reference within the department.
   • Boosters / Donors
     • While NIL is exciting for everyone, the reality is that school boosters and donors may be tempted to start handing out money in an attempt to strongly persuade prospective student-athletes (or current student-athletes) to attend, or remain at a specific school. This is not allowed, do the due diligence and communicate clearly to the boosters and donors because they simply may not be aware.
2. Courses to Assist Student Athletes
   • Financial Literacy Courses
     • Sadly, many basic life skill courses are not offered in post-secondary education. Because the NIL market exposes student-athletes to the realities of making money, it is important to provide them the tools to be successful. Therefore, I recommend implementing courses to introduce skills like:
       • Reading a contract
       • Identify Responsibilities within a contract
       • Signing a contract
       • How and where to cash a check
       • Budgeting money (i.e., 50% savings, 30% necessities, 20% controllable)
       • Time management and organization
       • Filing taxes
   • Branding Courses
     • The NIL market is here, accept it and make it a part of your school.
     • Introduce branding courses to student-athletes that identify
       • Types of Intellectual Property
       • How to brand in compliance with state law and school policies
       • Platforms for branding
       • Identifying the difference between school branding and individual branding
       • Educate specifically about the University’s brand and its history
3. Protect University Intellectual Property
   • While student-athletes are eligible to compensate off their NIL, they are not afforded the right to use the intellectual property of the University
   • Ensure trademarks are registered
   • Ensure rights in copyrighted material are secured and registered
   • Properly document own licenses to use NIL of the student-athletes for their own exploitation
4. Identify the Undesired Outcomes
   • NIL is generally governed by state law; thus there may be differences from state to state. But generally, the below points are common in this landscape:
     • Student-athletes enter into deals that violate state law, or school policy. For example, student-athletes enter into “pay-for-play” or similar recruiting inducements. The NCAA is silent on most NIL related legislation, but it is clear that student-athletes are not to enter into “pay-for-play” agreements.
     • Likewise, athletic departments, or any program with an athletic department, must not break the “pay-for-play” prohibition. As stated above, this is strictly prohibited by the NCAA and many state laws.
     • Student-athletes unknowingly enter into deals that conflict with university brands, or prior contracts
5. Identify the Realities of Conference Members
   • For example, I have provided a chart listing the Mid-American Conference Schools with their school and state policies. It is important to identify the slight differences amongst these schools in order for your coaches to understand variances in recruiting. Until a national set of bylaws is passed to govern NIL, the reality is that certain schools may exist in jurisdictions that have friendlier laws with respect to recruiting.

Mid-American Conference Schools with NIL Policies

School	State	Public / Private	Policy	Legislation	Enacted	Enacted Date (State)
University at Buffalo	New York	Public	UB NIL Policy (School)	SB S6722B	Bill Introduced	1/1/2023
University of Akron	Ohio	Public	Ohio’s Policy Simplified	SB 187	Signed into Law	7/1/2021
Bowling Green State	Ohio	Public	BGSU NIL Policy (School)	SB 187	Signed into Law	7/1/2021
Kent State University	Ohio	Public	Ohio’s Policy Simplified	SB 187	Signed into Law	7/1/2021
Miami Univeristy of Ohio	Ohio	Public	Ohio’s Policy Simplified	SB 187	Signed into Law	7/1/2021
Ohio University	Ohio	Public	Ohio’s Policy Simplified	SB 187	Signed into Law	7/1/2021
Ball State University	Indiana	Public	BSU NIL Policy (School)		n/a
Central Michigan	Michigan	Public	CMU NIL Policy (School)	HB 5217	Signed into Law	12/31/2022
Eastern Michigan	Michigan	Public	n/a	HB 5217	Signed into Law	12/31/2022
Northern Illinois	Illinois	Public	State Bill	SB 2338	Signed into Law	7/1/2021
University of Toledo	Ohio	Public	UT Compliance (See section 5, 7, 8)	SB 187	Signed into Law	7/1/2021
Western Michigan University	Michigan	Public	WMU Compliance Page	HB 5217	Signed into Law	12/31/2022

Plug for Law Student Assistance

Where feasible, college athletic departments should consider the opportunity of seeking assistance of law students. Specifically, through internships, or externships, law students can bring to an athletic department an incredible perspective. Moreover, law students will bring an excitement to tackle new tasks that emerge while departments attempt to navigate the ever changing terrain that is college athletics. Please consider the real possibility of accessing local law schools for such assistance.

Potential Federal Bills

BILL	Information
HR 1804	“Student-Athlete Equity Act”; Introduced by Rep. Mark Walker (R-NC); Referred to the House Committee on Ways and Means 03/14/19
S 4004	“Fairness in Collegiate Athletics Act”; Introduced by Sen. Marco Rubio (R-FL); Read twice and referred to the Committee on Commerce, Science, and Transportation as of 6/8/20
S 8382	“Student Athlete Level Playing Field Act”; Introduced by Sen. Anthony Gonzalez (R-OH); Referred to the Committee on Energy and Commerce, and in addition to the Committee on Education and Labor as of 9/24/20
S 5003	“Collegiate Athlete Compensation Rights Act”; Introduced by Sen. Roger Wicker (R-MS); Read twice and referred to the Committee on Commerce, Science, and Transportation as of 12/10/20
HR 9033	“College Athletes Bill of Rights”; Introduced by Rep. Janice Schakowsky (D-IL); Referred to the Committee on Education and Labor, and in addition to the Committee on Energy and Commerce as of 12/18/20
S 5062	“College Athletes Bill of Rights”; Read twice and referred to the Committee on the Judiciary as of 12/17/20
S 414	“Amateur Athletes Protection and Compensation Act of 2021”; Introduced by Sen. Jerry Moran (R-KS); Read twice and referred to the Committee on Commerce, Science, and Transportation as of 2/24/21
S 238	“College Athlete Economic Freedom Act”; Introduced by Sen. Christopher Murphy (D-CT); Read twice and referred to the Committee on Commerce, Science, and Transportation as of 2/4/21
15 U.S.C. Sec. 104	“Sports Agent Responsibility And Trust”