Name, image and likeness: Failures, successes and unknowns mark first year

·7 min read

One year ago, legislation related to name, image and likeness went into effect across college sports and erased the constant that had defined amateurism for more than a century: that student-athletes could not receive financial compensation as a result of their talent or celebrity.

A revolution has ensued.

What was expected to bring irreversible change to the long-standing amateur model has done exactly that and then some, shaking up the landscape to such an extreme degree that a timeline can be separated into the two distinct eras of before and after NIL.

"When NIL went into effect, we couldn’t think of a better group or community of people to represent our lifestyle and motto than college athletes," said Will Lawler, the athlete and brand relations lead for the apparel company Rhoback, which has agreements with over 2,000 athletes across all three NCAA divisions.

While the intended goal of NIL has been achieved, rule changes have birthed a variety of issues.

"The NIL process is still a work in progress," said David Kmiecik, a senior recruiting manager for Next College Student Athlete, which provides guidance and support to prospective athletes and their families.

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One year into NIL (the legislation went into effect July 1, 2021) the feeling around college sports is one of frustration over the drastic changes already seen and unease over the changes set to follow in the future.

"I always say it’s like Keystone, Colorado, in 1850 without any sheriffs on the street," said Tom McMillen, the president and CEO of LEAD1, an association representing the athletics directors and programs in the Football Bowl Subdivision. "You go as far as you think you can go in some cases. There are other schools that are much more conservative. That lack of consistency has been a big concern for our schools."

Virginia linebacker Nick Jackson (6) has signed multiple NIL deals, including one with Rhoback.
Virginia linebacker Nick Jackson (6) has signed multiple NIL deals, including one with Rhoback.

What has gone wrong

From the start, universities and athletes have struggled with the lack of guidance from the NCAA, which issued a hands-off policy permitting athletes to receive NIL compensation last June and has waded into the issue just once in the months since.

From a recruiting perspective, this has created a Wild West-like atmosphere where NIL offerings have the potential to supersede more traditional selling points such as recent success and facilities.

Athletics directors "are not sure where the lines are drawn," McMillen said. "The concerns are that you have a patchwork of regulations due to all the states taking the initiative to pass something when there were no national standards. That structure is very difficult."

Third-party groups driven by donors have stepped into this power vacuum to amass large pools of money earmarked for NIL opportunities. Existing outside the gaze of university compliance departments, these collectives have drawn attention for rubbing against the baseline principle that no NIL deal can include compensation for athletic performance.

"I don’t think anybody anticipated this concept around collectives. That’s where probably, at least among people I’m talking with, there’s concern over how they may or may not be operating," said MAC Commissioner Jon Steinbrecher.

Current NIL rules have also left behind foreign student-athletes in the United States on an F1 visa, which allows for immigration as a full-time student but prohibits off-campus employment for all but specific situations.

Allowing international athletes to access NIL deals is "something that could be changed and should be changed," McMillen said. And while doing so would require bipartisan support in Congress, "I think this is one area where you can get Mitch McConnell and Chris Murphy together on, because they all have international athletes."

One topic of interest among schools and athletes is the possible mental toll involved with NIL deals.

An NIL contract "brings certain levels of obligation," Steinbrecher said. "I don’t think we’ve looked at it necessarily as a mental health issue, per se. But clearly, there’s a time-demand element here."

These endorsements can be an issue "if you let it," said Virginia linebacker Nick Jackson, an all-conference pick who has signed multiple NIL deals, including one with Rhoback.

"For me, I don’t think it’s my end-all, be-all. It’s just NIL to me. It’s a great opportunity but it’s not defining me."

What has gone right

As promised, NIL legislation has removed the guardrails against student-athlete compensation. In some cases, athletes have received life-changing endorsement deals totaling in the hundreds of thousands of dollars — or even reportedly in the millions for star players at a premium position in a premium sport, such as a five-star quarterback.

"In many instances, it’s probably working and behaving exactly as one might hope it would," said Steinbrecher.

But the biggest impact of NIL is seen in the large deals signed by female athletes in non-revenue-generating sports; more so than any legislation this side of Title IX, NIL has created enormous gender equality where none previously existed.

“What really doesn’t get covered is the female swimmer or female softball player that could never monetize their NIL, never monetize themselves, for the first time being able to profit,” said Max Forer, an attorney at Miller Nash and former Oregon offensive lineman.

According to the NIL company Opendorse, women’s basketball players have accounted for 15.7% of overall compensation paid out to all athletes. Athletes in women’s sports make up five of the top nine sports in overall NIL activity, according to a tracking of transactions conducted by Opendorse.

“I think it’s just all about branding and what value you can add to the company,” Jackson said. “Companies are looking for a strong (return on investment). For our swimmers and divers, if a swimming company wants to get more sales, they’re going to go to the Olympians and try to pay them more. Just matter of fact, like that.”

NIL has given athletics departments the opportunity to educate athletes on topics previously unaddressed in the college space. Athletes are learning about financial literacy, entrepreneurship and brand-building, Steinbrecher said.

“Or communication skills. To learn a little bit about the law, about contracts, about public relations, or media relations or social relations. Take your pick.”

What comes next in NIL

Within the next year, companies involved in NIL deals may have a clear picture of the potential return on investment and act accordingly — doubling down on the number of endorsements or potentially reversing course to focus solely on football and men’s basketball.

The ability for female athletes to gain traction in the NIL market could lead to increased investments in women’s programs as universities see third-party interest.

“It does indicate the latent potential there,” McMillen said. “The fact that women can go into this publicity rights market and do so well is a very good signal for the future. It can only mean that women’s sports are going to be more popular, and women are going to continue to be able to benefit off the monetization of their publicity rights. But it’s not going to happen overnight.”

What seems inevitable is NIL trickling down to high school athletes and athletics.

Ten states already allow high schoolers to profit off NIL. One athlete in a state that allows NIL compensation, Los Alamitos (California) quarterback Malachi Nelson, told ESPN he expects to sign up to $1 million in endorsements by the time he enrolls at Southern California for the 2023 season.

“As that evolves,” Forer said, “what is private school going to look like, what is public school going to look like? What is their regulatory process?”

This evolution of NIL is the next great unknown in college athletics.

“After this first year of people kind of getting their feet wet with it, trying to better understand it, I think over the next couple of years we’ll really see what the impact is moving forward,” Kmiecik said. “It is constantly changing and it’s constantly evolving. It’s going to be constantly evolving.”

Follow colleges reporter Paul Myerberg on Twitter @PaulMyerberg

This article originally appeared on USA TODAY: Name, image and likeness legislation at year mark: What we learned

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