Natalie Beaudoin, a senior at Lewiston High, is one of several clients of Greg Glynn’s Pliable Marketing. Beaudoin has an NIL contract with Aroma Joe’s. photo/courtesy Pliable Marketing
What’s in a NIL Deal?
The dam first cracked a decade ago, with the U.S. Supreme Court’s ruling in O’Bannon v. NCAA. Former UCLA basketball star Ed O’Bannon, joined by fellow greats like Oscar Robertson and Bill Russell, sued the National Collegiate Athletic Association for the right to profit from the NCAA’s use of men’s Division 1 football and basketball players’ names, images or likenesses (NILs) in commercial enterprises like video games, and won.
Then, three years ago, came the Court’s unanimous ruling in NCAA v. Alston, which further weakened the Association’s ability to limit athletes’ compensation. So these days, Caitlin Clark, the Iowa basketball superstar, is earning an estimated $800,000 from deals with Gatorade, Nike and State Farm — more than three times the top salary in the WNBA. Bronny James earns an estimated $6 million while playing basketball at the University of Southern California, Colorodo Buffaloes quarterback Shedeur Sanders gets $4 million, and Livvy Dunne, a gymnast at Louisiana State and social media personality, collects about $3 million annually.
College sports generates billions of dollars in revenue every year, and “College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries,” Justice Brett Kavanaugh wrote in his concurrence to the Alston decision. “Colleges build lavish facilities. But the student athletes who generate the revenues, many of whom are African American and from lower income backgrounds, end up with little or nothing.”
So the floodgates are opening and standout student athletes finally stand to share in some of the riches at stake. But the rules are still hazy; some states are trying (and failing) to regulate these student-corprorate relationships; Congress, as usual, is dithering; and student athletes are at risk of being exploited or running afoul of the law.
Sports agent Greg Glynn, founder and CEO of Pliable Marketing in Augusta, puts the predatory practices of unscrupulous agents at the top of the list of problems. Neither Maine nor the federal government requires agents to register or meet minimum professional standards, so anyone can declare themself an athlete’s representative and start making deals. Some agents recruit young clients with promises of fast money from collectives and similar groups funded by sports boosters to pay athletes. The collectives are also largely unregulated, operating outside a college or university’s athletic department.
Agents like Glynn try to help students analyze offers from different schools and collectives, weighing the educational, financial and athletic opportunities. But others may pressure young athletes to take a short-term cash grab that fills the agent’s wallet but shortchanges the student’s opportunities.
Glynn observed that colleges and agents are not required to educate athletes about their NIL rights. He estimates that 75 percent of the student athletes profiting from social media channels are violating Federal Trade Commission (FTC) regulations by failing to disclose that their endorsements and product placements are paid. In addition to educating athletes about building their brands and marketing themselves, Glynn teaches his clients about FTC and IRS regulations. He contends this should be a minimum professional requirement for anyone purporting to represent an athlete’s best interests.
Further complicating the picture, the National Labor Relations Board (NLRB) recently ruled that men’s basketball players at Dartmouth College are college employees and therefore entitled to form a union. Dartmouth is appealing the ruling, but if it holds, the ballers’ union will be able to negotiate a contract governing compensation and working conditions. Colleges nationwide will then have to decide if they want to continue to sponsor interscholastic athletics, even if it means paying their players, or turning their professional-quality facilities over to intramural and club athletics, which generate no appreciable revenue.
The additional question of foreign student participation looms large. Among other potential pitfalls, an F-1 student visa permits a student to work up to 20 hours per week, but athletes spend more than 20 hours per week at practice and competitions, so their standing as employees of their college could compromise their ability to remain in the country.
Maine passed a law regulating NILs in 2022. In addition to reaffirming the rights athletes were granted under Alston, the law stipulates that “a student athlete may not be considered an employee of the college or university.” The NLRB’s next ruling could make Maine’s attempt at NIL regulation moot, but the issue will still demand resolution. UMaine, with just under 50 percent of its men’s hockey team hailing from outside the U.S., is unlikely an outlier in that regard.
“Each state is different, so that becomes an issue for Congress,” Glynn said. “Somebody needs to clean up the unfair advantage issue state-to-state.” Whether Alabama, which already repealed its sole attempt to regulate NIL deals, now has a recruiting advantage over other states’ programs is not high on the Congressional agenda.
Sen. Susan Collins’ office did not answer my inquiries about this. Sen. Angus King’s staff said he “believes that the NCAA is in the best position to make decisions about student athletes’ eligibility for sponsorship deals.” I tried to clarify, noting that NCAA president Charlie Baker told Congress his association cannot effectively regulate these deals without the type of federal regulatory oversight proposed in the FAIR College Sports Act. Does Senator King support passing that act? No response.
Rep. Chellie Pingree’s staff assured me she “would be supportive of allowing college athletes control over their name/image/likeness if a bill came to the House floor.” That’s not much of an assurance, since the Alston decision secured that much for them three years ago.
Pardon the pun, but I’d say the chances of this mess getting straightened out anytime soon are nil.
Send contracts to use Tom Major’s name, image or likeness to leagueofbollards@gmail.com.
