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Today’s guest columnist is lawyer and University of Michigan regent Jordan B. Acker.
NIL is here to stay.
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Sounds obvious, right? Well, to some it’s not, and there’s one group of important voices who need to hear this loud and clear: university trustees.
Name, image and likeness deals (NIL), which allow athletes to cash in on their fame and name recognition, have been a hot issue since the 1950s, most notably with the famed Jeremy Bloom skiing endorsement saga in the early 2000s, when the former Colorado football player and professional skier was forced to withdraw from playing top-level college football.
The issue eventually came to a head in 2020, when the Supreme Court forced the NCAA to allow athletes to receive endorsement money and other outside benefits in its Alston decision. Since then, NIL deals have been foremost on the minds of many college football fans, administrators and coaches—and what’s on their minds isn’t all rosy.
No question, there’s much to be nervous about. At most universities, the trustees serve as the moral compass guiding the school on large and important policy matters. Most trustees come from the ranks of alumni, and care deeply about the future and the reputation of the institution. And now, schools—and their trustees—have to accept that NIL rights are part of the landscape of college athletics. The best boards and trustees will not look to minimize athletes’ NIL rights, but rather to shape processes and rules that reflect the goals and values of their individual institutions.
As a current board member and former chairman of the University of Michigan’s Board of Regents, I’ve heard from many trustees throughout the country that they are concerned about the future of college sports. They worry sports programs are changing permanently, and they’re afraid of what the future holds.
NIL for college athletics is the “wild west,” but the truth is that college sports has long had a wild-west feel to it. In 1896, West Virginia freshman Fielding Yost received a deal to go play for Lafayette just in time for its big game against rival Penn, then returned to WVU for law school exams. He eventually became Michigan’s legendary head coach during the first golden era of college athletics. Since then, there are countless stories of boosters’ involvement in deals for players, most infamously at SMU in the 1980s.
Trustees, as fiduciaries, are rightly concerned with the economic health and security of the institutions they serve. So how do we live in a world where some of our biggest boosters are funneling those dollars to NIL deals? Quite simply, the long-term nature of trusteeship requires thinking about what happens three to five years from now if we don’t embrace NIL: a talent exodus in the student athlete and coaching ranks, winning less, less creativity in branding, and alumni/student/fan disinterest.
Instead, trustees must grow comfortable with a phrase that’s easily understood in the pros but less so in college sports: revenue sharing. Today’s college sports are a billion-dollar business, with athletes sacrificing time and turning down quintessential college experiences to practice and perform well. With all of the money in college athletics, it was and is simply unsustainable for student athletes not to profit from their talents and contributions. Schools essentially have two options: Work today with their current athletes and create a system that makes sure everyone is compensated fairly, or expect that it will be dictated by the courts, a future players association, or Congress, sooner rather than later.
Finally, while there’s no magic bullet, trustees have to be ready for something that is incredibly difficult in large, legacy institutions: change. Overnight, our system was upended. While we can absolutely be concerned about what that looks like, we have to be adaptable and ready to help steer our institutions through this time of great change.
So how should trustees understand this? First, they should spend time talking to their athletes, coaches and others who work on NIL issues, hearing from our student athletes what’s most important to them.
Trustees should also talk to professors and coaches at their schools about what they’re hearing, what their recruited students are thinking, and what other similarly situated universities and colleges are doing. One thing I’ve learned is that the biggest beneficiary may not be the quarterback or the star basketball player, but rather the brand-driven, tech-savvy athletes in Olympic men’s and women’s sports. And finally, they should be prepared to be a little bit uncomfortable. Change is hard, especially when it’s upending a system that has existed in many respects since the 1950s.
The prospect of collectives and donors bundling money directly to student athletes has the potential for chaos, especially when many schools believe these dollars could go to development. Frankly, this short-term thinking will cause schools’ athletic departments (and eventually their fundraising) to nosedive. Let’s be clear: The schools that embrace NIL and do this well are going to be the ones winning championships for the next 20 years.
And let’s face it: Change, not stasis, is what created many of these groundbreaking universities we are so honored to serve in the first place. Over the past 200 years, the American system of higher education has been as innovative as any industry, corporation or business in the country, and has served as the cornerstone of any successful state or city. Now, our institutions are being called on to innovate once more.
In 1905, when college football was on the verge of being outlawed, President Theodore Roosevelt sat with the major college football powers and insisted they innovate on their own to eliminate the dangers of the sport. Soon, we had the first down, the forward pass and the neutral zone, three crucial aspects of the modern game.
Innovation is as crucial to college athletics now as it was 120 years ago. And it requires ensuring that NIL works for all parties. Trustees must lead the way, or their institutions will be left behind.
Acker has served on UM’s board of regents since 2019, including as its chair from 2021-22. He previously served in the White House Office of Presidential Personnel and the Department of Homeland Security during the Obama Administration.