Chris McIntosh's time as Wisconsin athletic director has coincided with NIL. How does he feel about the rules now?

Chris McIntosh’s tenure at the University of Wisconsin as athletic director has paralleled a new era of major college athletics with the introduction of the Name, Image and Likeness rules.

McIntosh’s first day on the job as AD was July 1, 2021, the very same day NIL went in to effect.

Since then, NIL has changed college athletics dramatically. A lot of the results are good –  students can make money on their talents and learn from real-world business experiences. Some of it is unethical, wrong and very concerning, situations in which some students are recruited to colleges based on NIL promises and potential.

McIntosh was once wary of the negative impacts of NIL. The 46-year-old played at UW in another era, when he was the Big Ten lineman of the year in 1999 who blocked for Heisman-winning tailback Ron Dayne. McIntosh’s amateur status meant he would only receive a scholarship to the school; today he would be be able to capitalize on his public appearances and endorsements.

But McIntosh has grown to embrace the positive results of NIL and how it can benefit the nearly 800 student athletes in Madison.

"It falls in line with what the spirit of NIL was intended to be,” McIntosh said. “I had questions as to whether or not a market of our size could support a program of ours relative to others. And I don't have those concerns today.”

But NIL – without consistent, nationwide rules and regulations – also has raised major red flags that have made McIntosh concerned for UW, and college athletics in general.

It’s been two yeras since NIL rules have gone into effect in college athletics

Wisconsin has been prepared. McIntosh and the university reorganized the athletic department to manage NIL; Brian Mason, who worked in communications with the football program for more than a decade, was named director of NIL strategy exclusively. Partnerships have formed with organizations such as Altius Sports and The Varsity Collective, and Wisconsin has created YouDub to educate its student-athletes on taxes, personal brand development and contracts.

"It's been an intense effort,” McIntosh said. “It's required an incredible amount of bandwidth on the part of our organization."

The Varsity Collective is an independent third party, separate from UW athletics, the university or the UW Foundation. It's a group of alumni and donors – that's where the term comes from, a collective group setup – who collect donations and use those dollars to fund NIL activities.

Here's where NIL stands now

There are three basic rules everyone has to follow when it comes to NIL:

It can't be used in recruiting; athletes cannot be paid for their athletic performances (no bonuses for double-digit sacks by a linebacker); and it must be quid pro quo – athletes need to earn the money, not just get a check. For example: Athletes can paint art and sell it, or sing at a concert and make money or serve as an ambassador to a community club. Badgers can sell Pepsi products.

Here’s the issue: A Supreme Court decision from NCAA vs. Alston in 2021 challenges the assertion that the NCAA has the authority to enforce any rules that could be viewed as limiting student athletes’ ability to earn money. The NCAA still is still referring to it two years later as its "interim name, image and likeness policy."

That means Congress may be the only remaining logical solution to provide rules for the sake of consistency after discovering the problems that have arisen with NIL. Tampering is the biggest issue.

So, Congress to the rescue? That has been kind of a mess.

It’s left to the states right now, and more than 30 states have some kind of law regulating NIL. Wisconsin is not one of them. Also, NIL is only allowed at the college level in Wisconsin; high school athletes are not permitted to benefit, per WIAA rules.

So there is a nationwide patchwork of varying rules governing NIL and college athletics. Also concerning: Since first-time transfers no longer need to sit a year, enticement by recruiters before players enter the portal has become an issue that raises suspicions of tampering.

“That has created instability and I don't think it does anything to serve the needs of student-athletes,” McIntosh said. “I worry that there are kids leaving institutions where they had opportunity to be on a team and to obtain a degree, and they're leaving. I'm not sure that what they're finding when they leave is better.”

A consequence, McIntosh said, is that there are far more kids in the transfer portal than there are spots available on teams.

The current NCAA transfer portal is not made available to the media, so websites try to guess at the numbers. One website has 2,709 athletes (1,800 Division I and 900 Division II) having entered the portal in the current cycle. These numbers are similar to the year before. More than 3,000 football players entered the portal in the 2021-22 cycle. But those estimates are possibly very low.

Playing college musical chairs and the risk of being left out of a spot on a team are not what college athletics is supposed to be, McIntosh said.

So, there are some who want Congress to put together a national plan for the sake of consistency.

“Proposed federal legislation would be helpful in addressing those challenges,” McIntosh said.

What's next for Name, Image and Likeness rights?

There are multiple proposals for legislation at both the federal and state level, including:

A proposal by Sen. Tommy Tuberville from Alabama – a former football coach at Mississippi, Auburn, Texas Tech and Cincinnati – who is calling for transparency, certification of advisors and rules around when athletes can be courted for NIL deals.

The National Law Review explains:

“The 'Protecting Athletes, Schools, and Sports Act of 2023' is draft legislation that includes new restrictions and benefits for student-athletes and booster collectives that would change the landscape of the issue of name, image, and likeness (NIL) rights in the NCAA.

“Significantly, a student-athlete would only be able to enter a NIL contract after they have completed at least one semester of course work. This restriction limits concerns over boosters and collectives engaging with student-athletes prior to enrollment. Further, it is unlawful for a booster or third party to directly or indirectly provide or offer to provide funds to induce a student-athlete to enroll in, transfer from, or remain at a specific institution.”

There’s also a different proposal in California, the first state to pass the NIL bill. According to the Los Angeles Times:

“Senate Bill 1401, named the 'College Athlete Race and Gender Equity Act,' cuts right to the heart of the collegiate model and the ideals of amateurism. SB 1401 would require California schools to share 50% of annual revenues in football and men’s and women’s basketball with the athletes, initiating a new era of 'pay for play' – and what college sports leaders fear would be a doomsday scenario for athletic departments that currently use profits from revenue sports to fund their non-revenue sports programs.”

The California bill has been tabled for one year. But would it work here one day?

“A model like the bill proposed in California would make it difficult for us to continue our mission of broad-based opportunity at Wisconsin,” McIntosh said.

Wisconsin athletes have benefited from NIL deals

McIntosh wants to embrace the opportunity of NIL but he’s monitoring the proposed legislation throughout the U.S. to see what happens next. That’s one benefit of the state not having a law at the moment; Wisconsin can pivot and adapt as needed.

“We’ve had over 200 athletes across men's and women's sports that have benefited from NIL opportunities made possible by the collective,” McIntosh said. “You can't drive around Madison without seeing one of our athletes on a billboard or as part of a promotion and that's what it was intended to be. That's really encouraging.

“It's important that we can demonstrate the success that our student-athletes are having at Wisconsin, and while it's prohibited to use NIL in terms of recruiting, it is important that we can demonstrate that there are opportunities here once recruits become Badgers.”

In the first two years of NIL, more than 325 Wisconsin student-athletes have disclosed at least one deal, with representation across all 23 sports, a team spokesman said.

This article originally appeared on Milwaukee Journal Sentinel: Wisconsin athletic director Chris McIntosh sees good and bad with NIL