Name, Image, and Likeness ushers in new era of collegiate athletics

At the proverbial minute to midnight yesterday the NCAA Division I Board of Directors voted to approve an interim Name, Image, and Likeness (NIL) policy, which means collegiate student-athletes in all 50 states will be able to monetize their NIL without breaking NCAA rules and risking their eligibility.

The news was widely celebrated, as it should be. It will allow the thousands of athletes in dozens of states not already covered by state-legislated NIL laws to at least monetarily self-actualize.

But the NCAA deserves no credit, applause, or appreciation.

Approval of the policy came at 4:30 p.m. the day before those state laws were to go into effect, and just eight days after the NCAA lost a unanimous 9-0 decision before the Supreme Court of the United States in NCAA v. Alston. And while SCOTUS’ ruling was technically limited in scope, a scathing concurrent opinion by Justice Brett Kavanaugh laid out just how adrift the NCAA’s position really is.

“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate,” Kavanaugh wrote. ”And under ordinary principles of antitrust law, it is not evident why college sports should be any different.

Kavanaugh’s opinion tears into the NCAA’s assertion that amateurism is, as he wrote, “the defining feature of college sports.” Such “innocuous labels,” as Kavanaugh called them, ”cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America.”

The NCAA’s reputation for leading from the rear is more infamous than that time it penalized three athletes over eating pasta. Or that time it forbade cream cheese on bagels due to a draconian rule about snacks vs. meals. Or that time at the peak of March Madness an athlete admitted he sometimes went to bed hungry. All three received significant media exposure and in the latter two examples, public pressure forced quick changes to the rule book. There are dozens of other examples of the NCAA’s comically imperial rules.

The public backlash in those incidents, all from 2013 and 2014, wasn’t the only signal given to the NCAA — and NCAA v. Alston wasn’t the first antitrust law case brought against the institution.

In 2009 former collegiate star Ed O’Bannon and later other former athletes sued the NCAA and video game developer EA Sports over Name, Image, and Likeness which resulted in EA Sports canceling their college basketball and college football games. Court records revealed the NCAA knew EA Sports was making its games using real athletes’ names and graphical likenesses. EA Sports later settled with the ex-players out of court.

That makes the NCAA’s intentional failure to advocate, lead, and help pass national NIL legislation for the last several years all the more damning. The writing on the wall is as faded as the NCAA itself.

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For decades the NCAA was dragged kicking and screaming about the purity of amateurism while it spent every waking moment of its waning power working to preserve its exploitative system. Every victory for athletes, including this one, has largely been won by the players.

When it does come to governing bodies helping, the state of Florida has arguably led the way, with Governor Ron DeSantis signing a bill last year allowing athletes to capitalize on their NIL. While California was the first state to sign such a bill, Florida’s had the earliest scheduled start date. Several other states followed suit. Last Wednesday Florida’s state university system Board of Governors adopted regulations to help carry out the law.

Finally, exhaustingly, today is the first day players hold real power in their own hands. And since no one is quite sure exactly what this new world will look like, that empowerment is drawing significant amounts of anxiety and attention.

Florida’s NIL law makes it clear that schools like Florida State cannot help athletes navigate the new world. Athletes are on their own; the athlete must report their NIL deals with the university’s compliance department, they can’t exchange their performance for money, and any NIL deal cannot exceed their collegiate eligibility period. Athletes will have to be careful not to run afoul of NIL compliance rules.

To help with the transition, schools like Florida State have been near the forefront. FSU recently launched their “APEX” program — the school envisions it as a “comprehensive, multi-tiered program designed to empower student-athletes to capitalize’ on their ability to get compensated.”

But some athletes, including FSU’s McKenzie Milton and University of Miami’s D’Eriq King, aren’t just seeking out independent NIL startup companies like Dreamfield — as reported by the Tallahassee Democrat yesterday, they’re also becoming co-founders of them.

Melina Myers-USA TODAY Sports

Last week Tomahawk Nation interviewed one of Dreamfield’s original co-founders, Luis Pardillo, who described it as a Florida-based company that is looking to help collegiate athletes capitalize on their newfound social equity.

As a fan of the sport and with no one certain how it will shake out, it’s easy to feel like the early NIL era will be akin to the Wild Wild West. However, some have argued that only the top one percent of collegiate athletes outplay their benefits such as scholarships. That for most players, including the many that go pro in something other than sports, they do not generate more value than they receive. And that even for the top earners, they may not earn as much as one might expect.

While some of college football’s future megastars will undoubtedly garner national attention and may secure large national sponsorship deals on par with the money professional athletes can command, Pardillo believes the new NIL landscape, at least initially, will be centered around local businesses — many of whom Pardillo believes could use a boost in an economy still feeling the aftershocks of the COVID-19 pandemic.

In that sense, the NIL opportunities for rank and file athletes might be greater than one would expect. After all, what are most collegiate players if not also local celebrities?

Pardillo pointed out there are plenty of states where there are no professional sports teams for collegiate athletes to compete with. In fact, yesterday afternoon it was announced that Iowa basketball star Jordan Bohannon would be partnering with a local fireworks company later today for a live event autograph signing.

Dreamfield’s primary initial product will also be live event booking, Pardillo says, but they believe a comprehensive platform that allows athletes total control over their own hourly prices, provides them with some access to legal counsel they couldn’t otherwise afford on their own as well as handling their compliance responsibilities is attractive to a student-athlete with a busy schedule and an interest in controlling most aspects of their brand. As it turns out, student-athletes were helping Dreamfield design their platform.

NIL wouldn’t be exclusive to athletes from revenue-generating sports, either. Imagine how popular former FSU Softball player Jessie Warren would have been with local Tallahassee businesses after her incredible catch at the Women’s College World Series in 2018 before FSU brought home the title. Or international superstar Deyna Castellanos on FSU Soccer’s own run to a national title that same season.

Though it’s easy to imagine any basketball player who hits a buzzer-beater in March Madness or scores an electric touchdown in the College Football Playoff to advance his team to the next round could also find instant celebrity status and now has the ability to capitalize off of it.

The average fan may not know any of the less heralded players on the football team such as the offensive line, but starting today Pardillo believes you might find them all at the local BBQ joint signing autographs and greeting fans.

Still, when you’re dealing with players and companies many people may not have heard of, Pardillo noted there will be a necessary vetting process of both sides before a deal could be struck and money transferred to an athlete’s mobile wallet.

The next several months are likely to contain some chaos. Players will be figuring out what their worth is as they go, while startup companies like Dreamfield engage in their own arms race to deliver what athletes are looking for — many of whom don’t yet even know what they want or should be looking for.

The NCAA’s major defeat on NIL grounds removes the artificial restraints that were holding athletes back from participating in the free market. With such restraints gone, Pardillo believes the idea of athlete empowerment will only continue to grow. It’s a sentiment that echoes the message Justice Kavanaugh sent the NCAA last week.

The current NCAA model is “suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year,” Kavanaugh wrote.

“Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new 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.”

In 2014 Northwestern quarterback Kain Colter and fellow player Ramogi Huma attempted to unionize the Northwestern football team. They ultimately failed, but seven years later a Supreme Court Justice stated “student-athletes could potentially engage in collective bargaining” or negotiate an agreement for shared revenue.

During the push at Northwestern for unionization, Clemson head coach Dabo Swinney, when asked at the time about Colter’s and Huma’s attempts, stated the following:

“We try to teach our guys, use football to create the opportunities, take advantage of the platform and the brand and the marketing you have available to you. But as far as paying players, professionalizing college athletics, that’s where you lose me. I’ll go do something else, because there’s enough entitlement in this world as it is.”

Every collegiate athlete woke up today entitled to a little bit more than they were yesterday. Not only have the opportunities, platform, brand, and marketing available to them grown, they’re now actively creating their own.

The NCAA is sure to get sued again, a troubling development for an organization that has been embarrassed for steadfastly resisting the truth by clinging to a status quo — one very similar to Swinney’s statement — so tightly it has many now wondering whether its inability to do anything else will pave the way to its own destruction.

“The NCAA is not above the law,” Kavanaugh wrote. And now collegiate athletes are no longer under the NCAA’s thumb.