NCAA’s NIL Answer Is Not in Congress—It’s in Athletes’ Rights
Today’s guest columnist is Debbie Spander, founder and CEO of Insight Sports Advisors.
If you believe NCAA leaders and conference commissioners, federal name, image and likeness (NIL) legislation is necessary to save college sports. If you believe in protecting the rights of college athletes and in the law, a lightly regulated NIL marketplace is a far better and long-lasting approach.
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College sports leaders fought to prohibit college athletes from making money off their NIL because they wanted to preserve the amateur model—where athletes play for the love of the game, not for compensation. Otherwise, they alleged for years, college sports would be harmed, perhaps even destroyed. And powerful people believed the NCAA, and did nothing to protect the financial interests of college athletes.
Then, in 2021, the Supreme Court ruled against the NCAA in Alston, a case related to limits on education-related athlete compensation, and states began passing laws legalizing NIL. In response to a patchwork of state NIL laws, the NCAA has gone from opposing NIL to clamoring for a federal NIL bill from Congress and limited antitrust protection.
Two years into the NIL era, what have we learned?
Most fans actually don’t care if college athletes get paid, nor will they care whether the source is NIL or directly from the NCAA and its members.
It won’t decimate revenue sports.
And it certainly won’t harm female athletes, as some of the top NIL earners have been women, including gymnast Olivia Dunne and basketball players Angel Reese, Caitlin Clark and Paige Bueckers.
Despite dire warnings from many college sports executives, NIL has not decreased the value of college athletics. The industry is booming, with the Big Ten recently entering into media rights agreements valued at $7 billion, and networks and streamers lining up to bid billions for the right to broadcast the new 12-team College Football Playoff, which launches in January 2025.
Over the last 100-plus years, the NCAA and its members staved off government intervention to remain in control of amateur sports. Now that college athletes are allowed to enter into their own sponsorship, marketing and appearance agreements—and with the advent of collectives to “support” athletes at every Division I program, the NCAA is begging for government intervention so it can maintain control.
Since 2020, Congress has held 10 hearings on federal legislation to “standardize” NIL and “protect student-athletes,” three in the last five months alone. The NCAA is seeking laws that will establish a federal preemption of state NIL laws, provide the NCAA with limited antitrust protection, prohibit athletes from becoming university employees, and establish both a federal NIL database and uniform NIL contracts.
The NCAA has basked in self-governance for almost 120 years. Why does it “need” federal government regulation now, and why does the NCAA believe it deserves any kind of antitrust protection? What the NCAA is lobbying for should be a nonstarter. It should take heed of Sen. John Kennedy’s (R-La.) warning to NCAA president Charlie Baker at the most recent Congressional hearing last month: “I’d be real careful about inviting Congress to micromanage your business.”
An NIL database will do nothing to protect athletes or drive deals. If you are trying to get fair market value, agents are much better positioned to know the marketplace and negotiate the best possible deals for clients than the federal government or the NCAA.
There is no need for collegiate administrations or government employees to know what athletes are being paid in the NIL marketplace or have access to this confidential information. There are no databases for professional athletes’ marketing deals—only for their team salaries, which are overseen by their respective players associations and collectively bargained between the leagues and the unions.
The use of uniform NIL contracts is not only a terrible idea, but also not feasible. As a lawyer and an agent, I have negotiated thousands of agreements. Sponsorship, social media marketing, appearance and media deals all require different forms. The same applies to NIL deals: There are sponsorship, marketing, appearances, car leases and agreements with collectives ranging from $500 to $500,000. One form will never cover these and will, in fact, lead to more confusion in the NIL marketplace. And the contents of these agreements are confidential information.
The NCAA and its members would be better served by abandoning their efforts on Capitol Hill and focusing on a bilateral solution that respects all stakeholders, including college athletes.
It’s 2023: College athletes deserve a seat at the bargaining table. A collectively bargained labor agreement would make college athletes employees like NFL and NBA players, and a revenue-sharing database would help players and their agents better understand what the marketplace is and negotiate the best possible deals. As an advocate, I am in favor of more transparency in the
labor market.
There is already a movement to classify revenue-generating college athletes as employees, both pursuant to federal litigation, Johnson v. NCAA, and a National Labor Relations Board (NLRB) complaint on behalf of football and basketball players against the University of Southern California, the Pac-12 Conference and the NCAA. The NLRB is arguing that the entities are joint employers of these athletes.
Regardless of the outcomes of the cases winding their way through the courts and the NLRB, college athletes in major revenue-producing sports deserve a fair share of the billions of dollars they are helping generate. The federal government should not preserve NCAA amateurism in perpetuity and, in doing so, undermine college athletes fighting for their fair share.
Debbie Spander is founder and CEO of Insight Sports Advisors, a sports agency focused on media, coaching and executives. Insight’s clients include former professional athletes, NIL athletes, sports broadcasters, NBA and NCAA coaches and influencers. Spander’s experience and deep connections throughout the sports world provide an unparalleled platform to help clients build their personal brands and maximize their careers. Spander also consults with athletic departments on NIL and provides seminars and workshops to college athletes on NIL-related topics, and taught the NIL Experience at USC.
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